Introspection Through Litigation

This Article contends that there is a bright side to being sued: organizational defendants can learn valuable information about their own behavior from lawsuits brought against them. Complaints describe allegations of wrongdoing. The discovery process unearths documents and testimony regarding plaintiffs’ allegations. And in summary judgment briefs, expert reports, pretrial orders, and trial, parties marshal the evidence to support their claims. Each of these aspects of civil litigation can bring to the surface information that an organization does not have or has not previously identified, collected, or recognized as valuable. This information, placed in the hands of an organization’s leaders as the result of litigation, can be used to improve systems and personnel. This Article considers the information generated by litigation, the gaps lawsuit data can fill in the information otherwise available to organizations, and possible reasons some organizations may gather and analyze litigation data more frequently than others. To illustrate these concepts, I draw on original research of police departments and hospitals and evidence from other organizational settings

Qualified Immunity\u27s Selection Effects

The Supreme Court has described the “driving force” behind qualified immunity to be its power to dismiss “insubstantial” cases before discovery and trial. Yet in a prior study of 1,183 Section 1983 cases filed against law enforcement in five federal court districts around the country, I found that just seven (0.6%) were dismissed at the motion to dismiss stage and just thirty-one (2.6%) were dismissed at summary judgment on qualified immunity grounds. These findings undermine assumptions about the role qualified immunity plays in filed cases, but leave open the possibility that qualified immunity serves its intended role by screening out insubstantial cases before they are ever filed. Indeed, some have raised this possibility as reason to maintain the status quo. This Article tests this alternative “screening” justification for qualified immunity. Drawing on my prior study of 1,183 Section 1983 cases, as well as qualitative data from ninety-four surveys and thirty-five interviews of attorneys who entered appearances on behalf of plaintiffs in those cases, I find that qualified immunity almost certainly increases the cost, risk, and complexity of constitutional litigation, but has a more equivocal effect on attorneys’ case-selection decisions. Attorneys do not reliably decline cases vulnerable to attack or dismissal on qualified immunity grounds. And when lawyers do decline cases because of qualified immunity, they do not appear to be screening out “insubstantial” cases under any plausible definition of the term. These empirical findings enrich our understanding of the role qualified immunity plays in civil rights cases, contribute to mounting evidence that qualified immunity doctrine fails to achieve its intended policy goals, and support growing calls to better align the doctrine with the realities of constitutional litigation

Civil Rights Ecosystems

The Philadelphia and Houston Police Departments are similarly sized, but over a recent two-year period, ten times more civil rights suits were filed against Philadelphia and its officers than were filed against Houston and its officers. Plaintiffs in cases brought against Philadelphia and its officers were awarded one hundred times more in settlements and judgments. What accounts for these differences? Although the frequency and severity of misconduct and injury may play some role, I contend that the volume and outcome of civil rights litigation against any given jurisdiction should be understood as a product of what I call its civil rights ecosystem. Scientists define ecosystems as communities of living and nonliving elements that are interconnected and interactive. I define civil rights ecosystems as collections of actors (including plaintiffs’ attorneys, state and federal judges, state and federal juries, and defense counsel), legal rules and remedies (including state tort law, § 1983 doctrine and defenses, and damages caps), and informal practices (including litigation, settlement, and indemnification decisions) that are similarly interconnected and interactive. Variation in different aspects of a civil rights ecosystem determines the frequency with which claims against government are brought, the frequency with which those claims are successful, and the magnitude of their success. In this Article, I describe some key elements of civil rights ecosystems and the ways in which these elements interact, wide variation in civil rights ecosystems across the country, and ecosystem feedback loops that can magnify regional variation. Throughout, I illustrate aspects of this framework with examples drawn from an original dataset of almost 1,200 police misconduct cases filed in five federal districts around the country and surveys and interviews of dozens of attorneys who represented plaintiffs in these cases. Finally, I consider the implications of these observations. Understanding civil rights filings and payouts as the product of civil rights ecosystems reveals significant conceptual gaps in § 1983 doctrine and scholarly debate about the relationship between constitutional rights and remedies; raises important questions about the mechanics and desirability of regional variation in constitutional protections; and offers insights valuable for courts, advocates, and government officials seeking to change the scope and success of suits to enforce civil rights

The Case Against Qualified Immunity

If the Court did find an appropriate case to reconsider qualified immunity, and took seriously available evidence about qualified immunity’s historical precedents and current operation, the Court could not justify the continued existence of the doctrine in its current form. Ample evidence undermines the purported common-law foundations for qualified immunity. Research examining contemporary civil rights litigation against state and local law enforcement shows that qualified immunity also fails to achieve its intended policy aims. Qualified immunity does not shield individual officers from financial liability. It almost never shields government officials from costs and burdens associated with discovery and trial in filed cases. And it appears unnecessary to encourage vigorous enforcement of the law. The Court could, alternatively, overhaul or eliminate qualified immunity because—as Justice Sotomayor has observed—its application all too often “renders the protections of the Fourth Amendment hollow.” Although few cases are dismissed on qualified immunity grounds, multiple aspects of the doctrine—including its disregard of officers’ bad faith, exacting requirements to clearly establish the law, and license to courts to grant qualified immunity without ruling on the underlying constitutional claims—hamper the development of constitutional law and may send the message that officers can disregard the law without consequence. The fact that qualified immunity doctrine fails to protect government officials from financial liability or other burdens of suit makes the doctrine’s imbalance between government and individual interests especially concerning and unwarranted. If a majority of the Court is convinced by one or more of these arguments, they should restrict or do away with the qualified immunity defense altogether. In fact, five of the Justices currently on the Court have authored or joined opinions expressing sympathy with one or more of these arguments. Why, then, has the Court continued so vigorously to apply the doctrine, often in unanimous or per curiam decisions? In my view, the most likely explanation is that Justices fear eliminating or restricting qualified immunity would alter the nature and scope of policing or constitutional litigation in ways that would harm government officials and society more generally. For reasons that I will describe elsewhere, I believe there would be no parade of horribles were qualified immunity eliminated. But even if the Court does not find my assurances to be convincing, unsubstantiated fears about the future are insufficient reason to maintain a doctrine unmoored to common-law principles, unable or unnecessary to achieve the Court’s policy goals, and unduly deferential to government interests. The Justices can end qualified immunity in a single decision, and they should end it now

Introspection Through Litigation

This Article contends that there is a bright side to being sued: organizational defendants can learn valuable information about their own behavior from lawsuits brought against them. Complaints describe allegations of wrongdoing. The discovery process unearths documents and testimony regarding plaintiffs’ allegations. And in summary judgment briefs, expert reports, pretrial orders, and trial, parties marshal the evidence to support their claims. Each of these aspects of civil litigation can bring to the surface information that an organization does not have or has not previously identified, collected, or recognized as valuable. This information, placed in the hands of an organization’s leaders as the result of litigation, can be used to improve systems and personnel. This Article considers the information generated by litigation, the gaps lawsuit data can fill in the information otherwise available to organizations, and possible reasons some organizations may gather and analyze litigation data more frequently than others. To illustrate these concepts, I draw on original research of police departments and hospitals and evidence from other organizational settings

How Qualified Immunity Fails

This Article reports the findings of the largest and most comprehensive study todate of the role qualified immunity plays in constitutional litigation. Qualified immunity shields government officials from constitutional claims for money damages so long as the officials did not violate clearly established law. The Supreme Court has described the doctrine as incredibly strong- protecting all but the plainly incompetent or those who knowingly violate the law. Legal scholars and commentators describe qualified immunity in equally stark terms, often criticiz­ing the doctrine for closing the courthouse doors to plaintiffs whose rights have been violated. The Court has repeatedly explained that qualified immunity must be as powerful as it is to pro­tect government officials from burdens associated with participating in discovery and trial. Yet the Supreme Court has relied on no empirical evidence to support its assertion that qualified immunity doctrine shields government officials from these assumed burdens

Lexipol\u27s Fight Against Police Reform

We are in the midst of a critically important moment in police reform. National and local attention is fixed on how to reduce the number of people killed and injured by the police. One approach—which has been recognized for decades to reduce police killings—is to limit police power to use force. This Article is the first to uncover how an often-overlooked private company, Lexipol LLC, has become one of the most powerful voices pushing against reform of use-of-force standards. Founded in 2003, Lexipol now writes police policies and trainings for over one-fifth of American law enforcement agencies. As this Article documents, Lexipol has refused to incorporate common reform proposals into the policies it writes for its subscribers, including a use-of-force matrix, policies requiring de-escalation, or bright-line rules prohibiting chokeholds and shooting into cars. Lexipol has also taken an active advocacy role in opposition to proposed reforms of police use-of-force standards, pushing, instead, for departments to hew closely to Graham v. Connor’s “objectively reasonable” standard. Finally, when use-of-force reforms have been enacted, Lexipol has attempted to minimize their impact. Local governments, police departments, and insurers have long viewed Lexipol as a critically important partner in keeping policies lawful and up to date. This Article makes clear that they should take a closer look. Lexipol’s aggressive efforts to retain wide officer discretion to use force may ultimately expose officers and agencies to liability instead of shielding them from it. It is time for advocacy groups seeking policing improvements to train their sights on Lexipol. Unless and until Lexipol changes its approach, the company should be viewed as a barrier to reform. * Professors of Law, UCLA School of Law. For thoughtful comments on prior drafts, we than

Going Rogue: The Supreme Court\u27s Newfound Hostility to Policy-Based Bivens Claims

In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court held that a proposed Bivens remedy was subject to an exacting special factors analysis when the claim arises in a “new context.” In Ziglar itself, the Court found the context of the plaintiffs’ claims to be “new” because, in the Court’s view, they challenged “large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners.” Bivens claims for damages caused by unconstitutional policies, the Court suggested, were inappropriate. This Essay critically examines the Ziglar Court’s newfound hostility to policy-based Bivens claims. We show that an exemption for policy challenges can claim no support in the Court’s own development of the Bivens doctrine, or in the principles that animate the Court’s broader approach to government accountability law. Equally troubling, the policy exemption has already caused substantial confusion among lower courts. Judging that it lacks a legitimate predicate and defies coherent application, we conclude that the Court should pursue no further its hostility to policy-based Bivens claims

The Myth of Personal Liability: Who Pays When Bivens Claims Succeed

In Bivens v. Six Unknown Named Agents, the Supreme Court held that federal law creates a right to sue federal officials for Fourth Amendment violations. For the last three decades, however, the Court has cited the threat of individual liability and the burden of government indemnification on agency budgets as twin bases for narrowing the right of victims to secure redress under Bivens. In its most recent decisions, Ziglar v. Abbasi and Hernandez v. Mesa, the Court said much to confirm that it now views personal liability less as a feature of the Bivens liability rule than as a bug. But, to date, there has been no empirical examination of who pays when Bivens claims succeed. This Article studies the financial threat that successful Bivens claims pose to federal officers and their employing federal agency. Information supplied by the Federal Bureau of Prisons in response to a Freedom of Information Act request identified successful Bivens actions over a ten-year period; in the vast majority of cases (over 95%), individual defendants contributed no personal resources to the resolution of the claims. Nor did the responsible federal agency pay the claims through indemnification. The data suggest, in short, that recent hostility to Bivens litigation rests on a perceived threat of personal liability that is much more theoretical than real. The data also raise important questions about the adequacy of existing constitutional remedies and the manner in which the Department of Justice exercises its settlement authority under the Federal Tort Claims Act and the Judgment Fund