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I don't claim to be an expert on how to achieve structural policing reform. I have no such expertise. I have, however, sued law enforcement several times, under several different circumstances, and I do have some (unoriginal) thoughts about what would help.
First, some background. I've sued law enforcement—in this case, a Sheriff (along with a judge)—for enforcing unconstitutional programs and policies: https://www.tennessean.com/story/news/2019/05/20/tennessee-inmate-sterilization-program/3748232002/
I've sued police officers for their criminal behavior while they were off the clock: https://abcnews.go.com/US/woman-files-million-suit-officer-broke-home-yelled/story?id=68312784
I've sued to stop illegal prosecutions under ridiculous circumstances: https://patch.com/tennessee/nashville/obscenity-charges-dropped-nashville-stick-figure-sex-case
I've sued over things that are important to families who have been hurt by police that other people simply don't or won't sue over: https://patch.com/tennessee/nashville/after-year-nashville-police-return-jocques-clemmons-phone
I've sued over *responses* to tragedies that didn't involve deliberate misconduct: https://www.tennessean.com/story/news/local/2020/04/21/antioch-waffle-house-shooting-victims-settlement-akilah-dasilva/2999753001/. You get the picture.
In virtually every case, money is not the primary concern or even a concern at all. People often want an acknowledgement of wrongdoing, an assurance that something won't happen again, a clear picture of what happened and who is responsible, and some measure of accountability.
In every single case bar none, the Government is unwilling to provide those things unless and until they have been pushed, pulled, and FORCED by circumstance to do so. There is a reason for that. The reason is that litigation against the government is damn near impossible to win.
Where damages are concerned, far and away the biggest culprit is qualified immunity, a judicially fabricated doctrine that courts use to tell people that even though they've been grievously and illegally harmed, they are not entitled to redress or relief. https://twitter.com/Scot_Blog/status/1266737730958110722?s=20
Here are a few of the ROUTINE affronts that that ridiculous fucking doctrine produces: https://twitter.com/ConLawWarrior/status/1255464895371513861?s=20. It is fundamentally at odds with basic notions of justice. It is legally unsupportable. And it is insane.
As long as qualified immunity exists, police have no good reason to reform or avoid hurting people. There just isn't any real risk associated with the status quo. And governments will resist acknowledging wrongdoing, because they do not have to and legally, probably shouldn't.
Qualified immunity is the tip of the iceberg. There are so, so many ways that people who have been harmed by the government are denied redress from the courts. https://twitter.com/Scot_Blog/status/1266745209423048704?s=20
That, compounded by the fact that most people cannot afford a lawyer and the government can prevent fee-shifting through shenanigans, means that the judicial system, as it presently functions, is catastrophically failing to redress legitimate grievances. https://twitter.com/Scot_Blog/status/1254782678013902850?s=20
The best and most straightforward way to fix this is by enacting legislation that ensures people can have their claims heard. It's doable. We've done it many times. It used to be impossible to sue the government in any case at all, certainly for damages, and now it's (often) not.
Tennessee, for example, recently enacted such a statute, albeit not for damages claims:
https://twitter.com/Scot_Blog/status/1266748189253738496?s=20. There is no reason why such a right to a remedy statute could not be expanded or enacted federally. Indeed, that was the entire (intended) purpose of 42 § 1983.
https://twitter.com/Scot_Blog/status/1266748189253738496?s=20. There is no reason why such a right to a remedy statute could not be expanded or enacted federally. Indeed, that was the entire (intended) purpose of 42 § 1983.
Stripping the government of its ability to litigate every case on Easy Mode with insurmountable advantages will ensure police departments proactively implement reform to avoid liability. It is a fairly straightforward concept. When they do something wrong, they'll have to pay.
It will also allow Governments to do what other litigants do far more frequently: Acknowledge wrongdoing early. Fire bad apples. Pay out claims when they're owed. Implement policies that will help avoid incurring liability in the first place.
In sum: The judicial system has remarkable tools available to ensure that justice is done in standard cases. Those tools are often unavailable, however, when it comes to the government. Merely making the government act like a regular litigant will produce immediate results. /END
Slight addendum: When I say these thoughts are unoriginal, I mean it. Lawyers and academics have been griping about them for years. Here’s one of the better and more straightforward reads on the issue: https://www.amazon.com/Closing-Courthouse-Door-Constitutional-Unenforceable/dp/0300211589
