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The Rights Revolution in the Age of Obama and Ferguson: Policing, the Rule of Law, and the Elusive Quest for Accountability

Published online by Cambridge University Press:  07 September 2015

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Abstract

Recent political science scholarship examining the institutional features of the rights revolution has highlighted the importance of the private enforcement of civil rights. This article discusses a less well-known line of Supreme Court cases concerning government liability that have undermined effective private enforcement of constitutional rights. I examine the impact of the Court’s “procedural assault” on private civil rights enforcement and possible responses to the recent protests in Ferguson, Missouri, and elsewhere across the country regarding police use of force. After identifying the ways in which the Court has undermined a core strand of the rights revolution, I assess the challenges confronting the Obama administration and civil rights leaders as they respond to these developments.

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Articles
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Copyright © American Political Science Association 2015 

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.

Footnotes

2 Vega and Eligon Reference Vega and Eligon2014.

3 Goldstein and Schweber Reference Goldstein and Schweber2014. Other police shootings also received national news coverage that summer and fall. On August 5, a twenty-two year old African American man, John Crawford, was shot and killed in a Beavercreek, Ohio, Wal-Mart store after picking up a pellet air rifle gun in the sporting goods section of the store. A recording of the incident showed that the police officers’ initial explanations were false. The officers, however, were not indicted by a local grand jury; Gokavi Reference Gokavi2014. Two days after the shooting of Michael Brown, on August 11, Ezell Ford, an African American man with known mental health issues, was shot and killed by Los Angeles police officers. Vives, Winton, and Mather 2014. On November 22, a twelve-year old African American boy, Tamir Rice, was shot and killed by police officers while playing with a toy gun in a Cleveland playground. A video later disclosed that the officer shot the boy within two seconds of arriving at the park; Dewan and Oppel Reference Dewan and Oppel2015.

4 In an Associated Press poll, news directors and editors voted the police killings and protests the top story of 2014; Crary Reference Crary2014. As they sought to provide greater context for the 2014 protests, journalists called attention to the lack of comprehensive official data on police misconduct; Goff Reference Goff2014, Fisher-Baum 2014, Lee Reference Lee2014, Schmidt Reference Schmidt2015c. There are no federal government databases collecting comprehensive, uniform reports on police shootings or other forms of police misconduct. Although the FBI’s Supplementary Homicide Report is based on information voluntarily provided from only a fraction of police agencies nationwide and is limited to “justifiable homicides” by the police, many journalists used these reports to consider the available evidence of the trends in police shooting incidents over time and to examine the breakdown by race. In 2014, there were 461 justifiable homicides by police officers, the most in two decades of reporting; Johnson Reference Johnson2014. In March 2015, a study released by the Bureau of Justice Statistics concluded that the numbers in the FBI’s Supplementary Homicide Report missed approximately half the estimated number of police homicides; Lopez Reference Lopez2015. Drawing on the data in the FBI’s Supplementary Homicide Report and the most recent U.S. Census figures, Pro Publica reported that in 2010–2012 young black men were 21 times more likely to be killed by police than young white men: “The 1,217 deadly police shootings from 2010 to 2012 captured in the federal data show that blacks, age 15 to 19, were killed at a rate of 31.17 per million, while just 1.47 per million white males in that age range died at the hands of police”; Gabrielson, Grochowski Jones, and Sagara Reference Gabrielson, Grochowski Jones and Sagara2014.

5 Capps Reference Capps2014; Mueller and Southall Reference Mueller and Southall2014. Much of the organizing of the 2014 street protests was done online and used the hashtag #BlackLivesMatter, which itself had come into use in response to the 2012 shooting death of Trayvon Martin, a seventeen-year old African American high school student accosted and killed by George Zimmerman, who had imagined Martin’s presence in his Sanford, Florida neighborhood to be a threat. When Zimmerman was found not guilty in 2013, protestors mobilized and the social media hashtag #BlackLivesMatter became a popular tool for protest and solidarity. See, e.g., Wells Reference Wells2014, Capehart Reference Capehart2015, Kang Reference Kang2015. Another notable feature of the responses to these episodes was the racial split in public opinion. A 2013 Pew Poll found that 86 percent of blacks but just 30 percent of whites were dissatisfied with Zimmerman’s acquittal. A 2014 Pew Poll found that 80% of blacks but only 23 percent of whites disagreed with the grand jury decision not to indict the officer who killed Michael Brown; 90 percent of blacks and 47 percent of whites disagreed with the grand jury decision not to indict the officer involved in the killing of Eric Garner; Pew 2013, 2014; see also Ramsey Reference Ramsey2015.

6 Police officers are rarely indicted in use of force cases; Casselman Reference Casselman2014, Kindy and Kelly Reference Kindy and Kelly2015.

7 Bosman and Goode Reference Bosman and Goode2014; Horwitz,Leaning, and Kinder Reference Horwitz, Leaning and Kindy2014; Apuzzo and Fernandez 2014.

8 Section 1983 is a provision in the United States Code, derived from the Civil Rights Act of 1871 that allows individual plaintiffs to sue government officials acting “under color of law” to violate rights protected by the Constitution and laws of the United States. 42 U.S.C. § 1983:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory of the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities, secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress …

For harms committed by federal officials, courts have developed a separate doctrine to allow constitutional tort claims against individual officials; Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). The Bivens doctrine uses the same qualified immunity defense used in Section 1983 suits against individual officials.

10 By contrast, the statutory rights revolution launched by the 1964 Civil Rights Act has attracted the attention not only of political scientists specializing in law and courts but also of American Political Development and policy scholars examining the role of courts from an “interbranch perspective”; see, e.g., Barnes Reference Barnes2007, Farhang Reference Farhang2010, Melnick Reference Melnick2014. For more on the role of litigation in American politics, see Kagan Reference Kagan2001, Burke Reference Burke2002, Silverstein Reference Silverstein2009.

11 For more information about these civil rights lawsuits, including links to many of the complaints or notices to sue, see Addo Reference Addo2015 on Michael Brown, Moore and Hutchinson Reference Moore and Hutchinson2014 on Eric Garner. For information about other high-profile cases and the families’ lawsuits, see Izadi Reference Izadi2014 on John Crawford, Vives Reference Vives2014 on Ezell Ford, Heisig Reference Heisig2015 on Tamir Rice.

12 I do not offer a full assessment of the development of Section 1983 doctrine here. In my forthcoming book, I examine the available papers of the Burger Court justices as part of a more extensive examination of this crucial formative period when the main contours of the doctrinal framework for constitutional torts were established. The book’s coverage of the Burger Court cases highlights the role of legalist concerns and features the role of the moderate swing justices. Depending on the particular issue and the coalition of justices, the Burger Court would offer civil rights plaintiffs one (sometimes large) step forward, but then follow with two (or more) steps back. Many of the cases now cited as moments of progress were typically the product of a great deal of doctrinal pressure, so the new holding was introduced in a somewhat begrudging fashion, with new steps intended to produce careful hemming in following soon after. The result was an extremely complex doctrinal framework for constitutional tort litigation, the product of judicial bargaining and compromise that likely undermined more comprehensive legislative reforms to Section 1983 in the 1970s—what is now understood to be the high point of popular support for civil rights litigation.

13 See, e.g., Lieberman Reference Lieberman2007, Mulroy Reference Mulroy2012, Melnick Reference Melnick2014.

14 Administrative Office of the U.S. Courts, 2014 Annual Report of the Director, table C-2. When evaluating trends in section 1983 cases, one should approach the Annual Report statistics with caution. The category of “other civil rights” cases used in the Annual Reports is not limited to those actions brought under Section 1983. It also encompasses other kinds of civil rights cases, including Bivens actions brought against federal defendants, cases based upon 42 U.S.C. § 1985, 42 U.S.C. § 1981, and housing discrimination cases brought under Title VIII of the Civil Rights Act of 1964. Although the exact percentage is unknown, most of the cases in this category are the result of constitutional tort actions under Section 1983 and Bivens.

15 See, e.g., King and Smith Reference King and Smith2011; Murakawa Reference Murakawa2014; Lerman and Weaver Reference Lerman and Weaver2014; Gottschalk Reference Gottschalk2014; Epp, Maynard-Moody, and Haider-Markel Reference Epp, Maynard-Moody and Haider-Markel2014.

16 See, e.g., Teles Reference Teles2008; Hollis-Brusky Reference Hollis-Brusky2015; Farhang and Burbank Reference Farhang and Burbank2014; Staszak Reference Staszak2015.

17 See, e.g., King and Smith Reference King and Smith2011; Sugrue Reference Sugrue2010; Kloppenberg Reference Kloppenberg2011; Remnick Reference Remnick2010.

20 Klinkner and Schaller Reference Klinkner and Schaller2009; Smith, King, and Klinkner Reference Smith, King and Klinkner2011.

21 Monroe v. Pape, 365 U.S. 167(1961). For more on the background of this case, see Gilles Reference Gilles, Gilles and Goluboff2008.

22 The Monroe Court did not allow the action against the City of Chicago. Section 1983 was later interpreted to permit lawsuits against municipalities; Monell v. New York Department of Social Services, 436 U.S. 658 (1978).

23 Jeffries Reference Jeffries1998.

26 Ibid., 303.

27 Administrative Office of the United States Courts, 1960 Annual Report of the Director at 232.

28 Schuck Reference Schuck1983, 49.

29 Administrative Office of the U.S. Courts, 1979 Annual Report of the Director at 60–61.

30 He notes that part of the change was due to a change in Fourth Amendment doctrine, when the Court abandoned the “fleeing felon” rule in Tennessee v. Garner, 471 U.S. 1 (1985); Epp Reference Epp2009.

31 Rudovsky Reference Rudovsky1992.

32 When the original federal “pattern or practice” bill allowing structural reforms of local police departments was first proposed in 1991, the Democratic sponsors included a provision for private enforcement, but the provision was rejected by Republicans. By the time the “pattern or practice” provision was slipped into the mammoth Violent Crime Control and Law Enforcement Act of 1994, the power to initiate the investigations was limited to the Justice Department.

33 For influential examples from the 1990s, see Howard Reference Howard1997; Olson Reference Olson1991. Galanter Reference Galanter1983 describes the increasingly widespread concern about litigation that developed along with the rights revolution earlier in the 1970s.

34 McCann and Haltom Reference McCann and Haltom2004; Southworth Reference Southworth2008.

35 Irons 1988; Dodd Reference Dodd2004.

36 Melnick Reference Melnick2012, 29–30; Farhang Reference Farhang2010.

37 Fontana Reference Fontana2014.

39 Ford Reference Ford2011. For an important critique of Ford’s argument, see Chen Reference Chen2013.

42 Obama interview quoted in Francis Reference Francis2014.

43 Obama Reference Obama2006, 83.

44 For an influential empirical study challenging those perceptions as “overstated,” see Eisenberg and Schwab Reference Eisenberg and Schwab1987, 643. For overviews of the legal scholarship on federal court caseloads, see Baker Reference Baker1994, Yackle Reference Yackle1994, Posner Reference Posner1996, Resnik Reference Resnik1997, Levy Reference Levy2013.

45 Blackmun Reference Blackmun1985. Karen Blum, a leading Section 1983 scholar and educator, notes that “fifty-plus years after Monroe, many of us are asking, ‘what went wrong?’”; Blum Reference Blum2015, 913.

46 Monell v. New York City Dep't of Social Services, 436 U.S. 658 (1978).

47 Eisenberg Reference Eisenberg2013.

49 Melnick Reference Melnick2011.

50 Farhang and Burbank Reference Farhang and Burbank2014.

51 A number of political scientists have focused on high visibility constitutional opinions to support claims that minimalism is a trend in the Roberts Court; see, e.g., Ward and Pickerill Reference Ward and Pickerill2013.

52 Myers Reference Myers2001. The coverage for the 2000 Term was dominated by Bush v. Gore, 531 U.S. 98 (2000).

53 See, e.g., Burke Reference Burke2002, Farhang Reference Farhang2010; compare Farhang and Burbank’s recent work highlighting the role of judicial retrenchment; Farhang and Burbank Reference Farhang and Burbank2014.

54 532 U.S. 598 (2001).

56 42 U.S.C. § 1988.

57 532 U.S. at 600-610.

58 Rehnquist’s definition contradicts that found in the Senate Report: “parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief” (emphasis added); Albiston and Nielson Reference Albiston and Nielsen2007, 1089.

59 532 U.S. at 618.

60 Miller Reference Miller2013, 360–2.

62 Burke Reference Burke2002, 207, n. 14 cites a finding from The Civil Litigation Research Project: “For every one thousand ‘grievances’ perceived by respondents involving at least $1,000, only fifty cases were filed in court, a rate of 5 percent.”

63 The term “private attorney general” was coined by Judge Frank in Associated Industries of New York State v. Ickes, 134 F.2d 694 (2d Cir. 1943). After the passage of Title VII, the Supreme Court acknowledged that private plaintiffs were serving a broader public function. See Newman v. Piggie Park Enterprises, 390 U.S. 400, 401–02 (1968) (observing that suits under the Civil Rights Act of 1964 are “private in form only” because whenever a plaintiff “obtains an injunction, he does so not for himself alone but also as a ‘private attorney general,' vindicating a policy that Congress considered of the highest priority”). As the legislative history of CRAFAA makes clear, Section 1983 plaintiffs play a similar role by protecting important constitutional values; Farhang Reference Farhang2010, ch. 5.

64 532 U.S at 618.

65 Albiston and Nielson Reference Albiston and Nielsen2007, 1091.

66 See, e.g., Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000); Bd. of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001). Cf. Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003), in which Rehnquist switched sides and wrote a majority opinion holding that the Family and Medical Leave Act of 1993 was a valid use of Section 5 of the Fourteenth Amendment and thus subject to the post-Fitzpatrick abrogation doctrine.

67 440 U.S. 332 (1979).

68 491 U.S. 98 (1989).

69 520 US. 781 (1997). In McMillian, the Court required an examination of each state’s law to determine whether sheriffs should be deemed state or local officials for any given function they perform. For an overview of McMillian’s impact in a number of circuit court opinions, see Blum Reference Blum2005.

70 Ex parte Young, 209 U.S. 123 (1908); Hafer v. Melo, 502 U.S. 21 (1991).

71 Harlow v. Fitzgerald, 457 U.S. 800 (1982); Anderson v. Creighton, 483 U.S. 6335 (1987). The Warren Court had previously applied a good faith defense to police officers in Pierson v. Ray, 386 U.S. 547 (1967). In Scheuer v. Rhodes, 416 U.S. 232 (1974), the Court introduced the doctrine of “qualified” immunity and offered a policy-based justification focusing on the need to preserve vigorous enforcement without undue fear of liability. In Wood v. Strickland, 420 U.S. 308 (1977), the Court assessed qualified immunity using both subjective and objective tests. The innovation introduced in Harlow (1982) was that qualified immunity would now be based solely on objective reasonableness. In Anderson (1987), the Court emphasized that reasonableness would be based on whether there was a clearly established legal ruling providing notice of a constitutional violation. The Harlow/Anderson approach made it much easier to dismiss cases on qualified immunity grounds prior to discovery (because the standard was an objective one and no longer required evidence regarding subjective beliefs) and also required the plaintiff to show a factually similar precedent, typically in the same circuit, existed to clearly establish the unconstitutionality of the conduct. With these changes, qualified immunity doctrine began imposing an extremely high initial hurdle for plaintiffs, particularly in police use of force cases.

72 For two critical analyses that emphasize the Court’s efforts to allow the termination of these lawsuits at the earlier possible stage, prior to discovery or full development or assessment of the facts, see Rudovsky Reference Rudovsky1989, Chen Reference Chen2006.

73 471 U.S. 1 (1985).

74 490 US. 386 (1989).

75 Because the Roberts Court recently abandoned a requirement that federal judges first assess the constitutionality of an official’s action before turning to the qualified immunity inquiry, it will be more challenging to develop a line of precedent in each circuit that could further clarify the Garner/Graham standard. The mandatory two-step sequence was first endorsed by the Court in Saucier v. Katz, 533 U.S. 194 (2001) and then rejected in Pearson v. Callahan, 555 U.S. 223 (2009).

76 Mitchell v. Forsyth, 472 U.S. 511 (1985).

77 Terebisi v. Terreso, 764 F.3d 217 (2d Cir. 2014).

79 Hope v. Pelzer, 536 U.S. 730, 739–740 (2002).

80 Plumhoff v. Rickard, 134 S.Ct. 2012 (2014). In this case, police officers attempted to stop a car with a missing taillight and engaged in a high-speed pursuit, eventually killing the driver and the passenger when the driver attempted to flee again. The Court addressed the merits question first (despite Pearson’s ruling that merits-first decisions were no longer required) and ruled that this behavior did not constitute excessive force under the Fourth Amendment. Id. at 2021–22. The Court also offered the backup position that qualified immunity would have applied regardless of the answer regarding excessive force. Id. at 2023.

81 423 U.S. 362 (1976).

82 For an overview of the Rizzo litigation, see Cooper Reference Cooper1988, ch. 11.

83 423 U.S. at 364–5.

84 423 U.S. at 365.

85 423 U.S. at 380. On the unprecedented nature of the Rizzo holding, see Weinberg Reference Weinberg1977. In City of Los Angeles v. Lyons, 461 U.S. 95 (1983), the Court completely closed off the availability of private structural reform litigation in police use of force cases when it ruled 5–4 that plaintiffs do not have Article III standing to seek injunctive relief in police brutality cases. These standing obstacles did not apply to structural reform litigation challenging prison conditions because of the ongoing nature of the violations for prisoners involved in the lawsuits. For an overview of the prison reform litigation, see Feeley and Rubin Reference Feeley and Rubin1999. Congress introduced other limits on injunctive relief in the 1996 Prison Litigation Reform Act. For discussion of Section 1983 cases seeking injunctive relief to improve prison conditions in the post-PLRA era, see Schlanger Reference Schlanger2003, Reference Schlanger2006, Reference Schlanger2015.

Class action challenges against police practices can occasionally overcome the Lyons standing hurdle and will be certified. For example, a number of Section 1983 class action challenges to stop-and-frisk practices have been certified in recent years, including in New York City. For the 2012 order granting class certification to the New York City plaintiffs and discussing the standing requirements under Lyons, see: http://ccrjustice.org/files/5-16-12%20Floyd%20Class%20Cert%20Opinion%20and%20Order.pdf . For the 2013 liability opinion analyzing the city’s liability under Section 1983, see Floyd v. New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013). Constitutional allegations regarding police brutality or excessive force, however, will rarely be aggregated into similar class actions, because the Garner/Graham standard requires an individualized determination of the constitutionality of each police action; Garrett Reference Garrett2012.

86 Kinports Reference Kinports1997, 147, 150, 158.

87 556 U.S. 662 (2009). Iqbal’s potential readjustment of notice pleading requirements has generated a large legal literature. For an overview, see Engstrom Reference Engstrom2013.

88 Schwartz Reference Schwartz2009.

89 556 U.S. at 693 (Souter, J., dissenting).

90 436 U.S. 658 (1978).

91 On the rejection of respondeat superior liability in Monell, see Rothfeld Reference Rothfeld1979; Achtenberg Reference Achtenberg2005.

92 City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985); City of Canton v. Harris, 489 U.S. 378 (1989); Bd. of the County Commissioners of Bryan County v. Brown, 520 U.S. 397 (1997); Connick v. Thompson, 131 S.Ct. 1350 (2011).

93 See, e.g., Chemerinsky Reference Chemerinsky2014b, noting the anomaly of the rejection of respondeat superior in Section 1983 and Bivens litigation.

94 373 U.S. 83 (1963).

95 131 S.Ct. at 1360.

96 Thompson Reference Thompson2011. Thompson could not sue the prosecutors directly because they benefited from “absolute immunity” from suit. In the 2009 Van de Kamp v. Goldstein case, 129 S.Ct. 855 (2009), the Roberts Court extended the absolute immunity doctrine to cover supervisory failures to train or implement programs to prevent Brady violations. The plaintiff in Van de Kamp, Thomas Goldstein, was left with no remedy for prosecutorial misconduct, after spending 24 years in prison for a crime he did not commit. Justice Breyer wrote the majority opinion in this case.

97 Because the NYPD Inspector General had already issued a report finding “troubling deficiencies” in the NYPD’s disciplinary practices when confronted with allegations of prohibited chokeholds, Garner’s municipal liability case appears to be quite strong and will likely end in a settlement; Barkan Reference Barkan2015. In 2014, New York City Comptroller Scott Stringer announced a new policy to seek settlements in major civil rights cases prior to the start of litigation and has expressed interest in reaching a settlement with Garner’s family; Weiser Reference Weiser2014.

99 Jois 2009.

100 Chemerinsky Reference Chemerinsky2011.

102 Karlan Reference Karlan2012.

103 Obama Reference Obama2014.

104 During a ceremony to honor African-American history month, for example, Obama invited Trayvon Martin’s parents to the White House, alluded to the Black Lives Matter protests, and referred again to what will be left to the next generation to fight for: “On the third anniversary of Trayvon Martin's death, showing all of our kids—all of them—every single day that their lives matter, that's part of our task.” When referring to his upcoming visit to Selma, he stated that he wanted to remind his children “of their own obligations. Because there are going to be marches for them to march and struggles for them to fight. And if we've done our job, then that next generation is going to be picking up the torch as well”; Obama Reference Obama2015a.

106 Consider also his 2009 speech marking the centennial of the NAACP, which is filled with references to the NAACP’s anti-lynching campaign, the sit-in protestors, freedom riders, and the voting registration campaigns; Obama Reference Obama2009.

107 Pub. L. 111–2, resetting the 180-day statute of limitations for Title VII claims with each new paycheck affected by discriminatory action; Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).

108 110th Congress, H.R. 5129.

109 Lewis Reference Lewis2008.

110 Farhang Reference Farhang2010.

111 Civil Rights Improvements Act of 1977, S. 95 and H.R. 454.

112 Pub. L. 104–134. Although the Iqbal decision in May 2009 did prompt civil rights organizations, consumer groups, and plaintiffs’ lawyers to mobilize, their legislative response focused on the pleading standard introduced in Kennedy’s opinion, not the portion of the opinion eliminating the option of supervisory liability in Section 1983 cases.

113 Eisen Reference Eisen2014 describes bipartisan criminal justice reform bills.

114 On August 18, 2014, the Lawyers’ Committee, along with twenty national civil rights organizations, issued “A Unified Statement of Action to Promote Reform and Stop Police Abuse,” calling for a Justice Department investigation; a comprehensive federal review and reporting of police killings and excessive force; the development of national use of force standards; federal review and reporting of “racially disproportionate policing,” including stop and frisk practices and racial profiling; mandates for police vehicle dashboard cameras and Body-Worn Cameras; efforts to prevent use or misuse of federal military equipment by local police departments; the elimination of broken windows policing; greater and more effective oversight; and the establishment of a law enforcement commission; Lawyers’ Committee for Civil Rights under Law 2014. Reforms to strengthen litigation under Section 1983 were not included in the Unified Statement of Action.

115 On December 18, 2014, President Obama signed an executive order establishing the President’s Task Force on 21st Century Policing, which considered testimony from a number of reform organizations and policing experts. The NAACP LDF was invited to present in-person testimony at a listening session on “Building Trust and Legitimacy” on January 13, 2015 and in its testimony called for greater data collection and endorsed the “PTSR” reforms discussed in note 123 below that are typically included in Justice Department consent decrees. In the same session, the ACLU highlighted the need to strengthen federal mandates for data collection and to establish effective civilian oversight bodies. The Center for Constitutional Rights (CCR), one of the nation’s leading civil rights litigation organizations, was invited to present in-person testimony at the “Policy and Oversight” session on January 30, 2015, and focused its recommendations on improving civilian complaint investigative bodies nationwide and including greater community involvement in court monitorships resulting from Justice Department § 14141 investigations or Section 1983 class action litigation. None of these leading civil rights organizations called attention to the need to revise Section 1983 liability doctrines in order to strengthen private enforcement of constitutional rights against police misconduct. The Task Force issued its interim report in March, 2015, with a lengthy list of recommendations and action items, but did not include any discussion of reforms to improve the effectiveness of Section 1983 litigation; President’s Task Force 2015.

116 I am focusing here on DOJ enforcement under §242 and the “pattern or practice” statute because these are the federal enforcement tools available to target state and local unconstitutional actions. It is important to note that the Justice Department’s Torts Branch defends Bivens cases, and thus has played an important albeit indirect role, through its arguments defending qualified immunity, in limiting Section 1983 doctrine. In the Obama era, the Justice Department has continued to use the states secrets privilege and other claims to defend federal officials in constitutional litigation.

117 Toobin Reference Toobin2014; on the turmoil during the Bush years, see Markon Reference Markon2010; Savage Reference Savage2006, 2009.

118 There is a long history of calls for the Justice Department to take the lead in civil rights enforcement. For a discussion of debates in Truman’s Presidents’ Committee on Civil Rights the 1940s, see Dodd Reference Dodd2010. Farhang Reference Farhang2010 discusses similar calls for Justice Department enforcement in the 1950s and 1960s. For more recent calls for Justice Department action in 2014, see Leber Reference Leber2014; Lemiuex 2014; Voorhees Reference Voorhees2014.

119 Farhang Reference Farhang2010.

120 325 U.S. 91 (1945).

121 The Justice Department conducted an investigation of the shooting of Michael Brown and issued a report explaining that the forensic evidence and witness statements did not support filing charges under § 242; Justice Department 2015a.

122 For the full list, as of 2014, see Rushin Reference Rushin2014, Appendices A and B. Harmon Reference Harmon2009 provides a useful overview of § 14141 investigations and proposes changes that could encourage more reform nationally. Rushin Reference Rushin2014 explores the bases for selecting cities to investigate and draws on interviews with Justice Department lawyers. During the Bush administration, the Justice Department began to use memoranda of agreements, rather than consent decrees. As a result, the evidence obtained in § 14141 investigations during the Bush administration could not be obtained by Section 1983 litigators; Silveira Reference Silveira2004.

123 In March 2015, the Justice Department completed its initial investigation of the Ferguson Police Department and issued its letter of findings; Justice Department 2015b. It was a detailed, extremely critical report that included evidence of racial profiling, excessive use of force, and the use of fees and fines to support municipal finances. The report itself received national attention, and the Justice Department is currently negotiating a resolution with the Ferguson Police Department. Most Justice Department consent decrees or settlements include reforms requiring improved data collection, early intervention systems, effective citizen complaint investigation procedures, and strengthened internal and external review procedures. Although many of the particulars will vary depending on the size of the department, these goals and reform categories are fairly well established. Samuel Walker uses the acronym PTSR—policy, training, supervision, and review—when summarizing the key features of these reforms. For an overview of the elements of “the new police accountability” agenda pursued by the Justice Department, see Walker and Archbold Reference Walker and Archbold2014, 16–28.

124 In the wake of the protests in 2014, Attorney General Eric Holder and FBI Director James Comey both urged improvements in the federal data collection mandates, particularly with respect to fatal police shootings; Schmidt Reference Schmidt2015a; Schmidt Reference Schmidt2015b. In December 2014, Congress passed the Death in Custody Reporting Act, Public Law No: 113–242, which requires states and localities receiving federal criminal justice assistance funding to report all deaths of individuals in custody, including those in the process of being detained or arrested; Gross and Schatz Reference Gross and Schatz2014. The interim report of the Task Force on 21st Century Policing also highlighted the need for more comprehensive data about police shootings and racial profiling; President’s Task Force 2015.

125 After a long delay before confirmation, Loretta Lynch was sworn into office as Attorney General on April 28, 2015. At the time of her confirmation, there were reports that Lynch planned to avoid making public statements that would be deemed critical of the police and to begin her tenure with a tour of local police departments; Apuzzo and Steinhauer Reference Appuzo and Steinhauer2015.

126 See, e.g., three recent unanimous opinions addressing qualified immunity: Lane v. Franks, 134 S.Ct. 2369 (2014); Wood v. Moss, 134 S.Ct 2056 (2014); Plumhoff v. Rickard, 134 S.Ct. 2012 (2014).

127 Markon and Murray Reference Markon and Murray2011; Carp, Manning, and Stidham Reference Carp, Manning and Stidham2013.

128 In Obama’s first term, 75 percent of his nominees were confirmed. Clinton’s rate was 84 percent and Bush’s was 88 percent; Wolf Reference Wolf2012.

130 In May 2015, there were 55 vacancies, 24 of which were considered judicial emergencies, and 17 pending nominations. For further information, see www.judicialnominations.org

131 White House Reference White2014; Ruger Reference Ruger2014.

132 Carp, Manning, and Stidham Reference Carp, Manning and Stidham2013.

133 In 2015, a kind of post-Ferguson template emerged: Accounts of police brutality were quickly disseminated online, often amplified by the availability of photos and video. Protests emerged quickly in towns and cities across the country. Local officials in increasing numbers began to respond more quickly to condemn the police actions and to call for investigations. For more on the 2015 protests, see Berman Reference Berman2015 on the Madison, Wisconsin fatal police shooting of nineteenth-year old Tony Robinson; Golgowski, Murphy, and Silverstein Reference Golgowski, Murphy and Silverstein2015 on the law enforcement-inflicted beating of a University of Virginia undergraduate Martese Johnson; Schmidt and Apuzzo Reference Schmidt and Apuzzo2015 when a South Carolina police officer was charged with homicide after a bystander’s cell phone video revealed that the officer shot motorist Walter Scott eight times in the back when he attempted to escape on foot; Bacon and Welch Reference Bacon and Welch2015 when a reserve sheriff’s deputy in Tulsa, Oklahoma fatally shot an unarmed man Eric Harris as he ran away; Rector Reference Rector2015; Marbella Reference Marbella2015 when Baltimore police were accused of unlawfully arresting Freddie Gray, who was handcuffed, shackled by his feet, and then placed unsecured in a police van and taken on a lengthy ride during which he severed his spine and later died, setting off large protests in Baltimore and solidarity protests nationwide.

135 Engstrom Reference Engstrom2013. PACER refers to the Public Access to Court Electronic Record system of electronically filed documents maintained by each of the 92 federal district courts.

136 Ibid. Engstrom notes that chief district judges have not granted fee waivers to academics seeking to use the PACER service, despite authorization under Judicial Conference rules to do so.

137 Schwartz Reference Schwartz2010, Reference Schwartz2014; Epp Reference Epp2009; Albiston and Nielsen 2007.

138 As Epp has shown, police misconduct attorneys are a type of “cause lawyers”; Epp Reference Epp2009. Similar studies could examine cause lawyers “within the state,” by focusing on the Justice Department lawyers (and the private contractors) pursuing investigations under § 14141; Rushin Reference Rushin2014, NeJaime Reference NeJaime2012. A more comprehensive study examining how Section 1983 litigators are affected by § 14141 intervention is also much needed.

140 Lowell Reference Lowell1888, 312.

References

References

Anderson v. Creighton, 483 U.S. 635 (1987).CrossRefGoogle Scholar
Associated Industries of New York State v. Ickes, 134 F.2d 694 (2d Cir. 1943).Google Scholar
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).Google Scholar
Bd. of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001).Google Scholar
Bd. of the County Commissioners of Bryan County v. Brown, 520 U.S. 397 (1997).Google Scholar
Brady v. Maryland, 373 U.S. 83 (1963). CrossRefGoogle Scholar
Buckhannon Board & Care Home v. W. Va. Dep’t of Health and Services, 532 U.S. 598 (2001).Google Scholar
Bush v. Gore, 531 U.S. 98 (2000).Google Scholar
City of Canton v. Harris, 489 U.S. 378 (1989).Google Scholar
City of Los Angeles v. Lyons, 461 U.S. 95 (1983).Google Scholar
City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985).Google Scholar
Connick v. Thompson, 131 S.Ct. 1350 (2011).CrossRefGoogle Scholar
Ex parte Young, 209 U.S. 123 (1908).Google Scholar
Floyd v. New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013).Google Scholar
Graham v. Connor, 490 U.S. 386 (1989).Google Scholar
Hafer v. Melo, 502 U.S. 21 (1991).CrossRefGoogle Scholar
Harlow v. Fitzgerald, 457 U.S. 800 (1982).Google Scholar
Hope v. Pelzer, 536 U.S. 730 (2002).CrossRefGoogle Scholar
Iqbal v. Ashcroft, 556 U.S. 662 (2009).Google Scholar
Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000).CrossRefGoogle Scholar
Lane v. Franks, 134 S.Ct. 2369 (2014).CrossRefGoogle Scholar
Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).Google Scholar
McMillian v. Monroe County, 520 US. 781 (1997).Google Scholar
Mitchell v. Forsyth, 472 U.S. 511 (1985).Google Scholar
Monell v. New York City Dep't of Social Services, 436 U.S. 658 (1978).Google Scholar
Monroe v. Pape, 365 U.S. 167(1961).Google Scholar
Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003).Google Scholar
Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968).CrossRefGoogle Scholar
Pearson v. Callahan, 555 U.S. 223 (2009).Google Scholar
Pierson v. Ray, 386 U.S. 547 (1967).Google Scholar
Plumhoff v. Rickard, 134 S.Ct. 2012 (2014).CrossRefGoogle Scholar
Quern v. Jordan, 440 U.S. 332 (1979).Google Scholar
Rizzo v. Goode, 423 U.S. 362 (1976).Google Scholar
Saucier v. Katz, 533 U.S. 194 (2001).CrossRefGoogle Scholar
Scheuer v. Rhodes, 416 U.S. 232 (1974).Google Scholar
Screws v. United States, 325 U.S. 91 (1945).Google Scholar
Tennessee v. Garner, 471 U.S. 1 (1985).Google Scholar
Terebisi v. Terreso, 764 F.3d 217 (2d Cir. 2014).Google Scholar
Van de Kamp v. Goldstein, 129 S.Ct. 855 (2009).Google Scholar
Will v. Michigan Department of State Police, 491 U.S. 98 (1989).Google Scholar
Wood v. Moss, 134 S.Ct. 2056 (2014).CrossRefGoogle Scholar
Wood v. Strickland, 420 U.S. 308 (1977).Google Scholar
Achtenberg, David. 2005. “Taking History Seriously: Municipal Liability Under 42 U.S.C.§ 1983 and the Debate Over Respondeat Superior.” Fordham Law Review 73: 2183–248.Google Scholar
Ackerman, Bruce. 2014. We the People, Vol. III: The Civil Rights Revolution. Cambridge, MA: Belknap Press.Google Scholar
Addo, Koran. 2015. “Michael Brown’s Family Files Wrongful Death Lawsuit.” St. Louis Post-Dispatch, April 24.Google Scholar
Albiston, Catherine R. and Nielsen, Laura Beth. 2007. “The Procedural Attack on Civil Rights: The Empirical Reality of Buckhannon for the Private Attorney General.” University of California Los Angeles Law Review 54: 1087–134.Google Scholar
Appuzo, Matt and Fernandez, Manny. 2014. “Justice Dept. Inquiry to Focus on Practices of Police in Ferguson.” New York Times, September 3.Google Scholar
Appuzo, Matt and Steinhauer, Jennifer. 2015. “As Attorney General, Loretta Lynch Plans Striking New Tone for the Justice Department.” New York Times, April 23.Google Scholar
Armacost, Barbara E. 2004. “Organizational Culture and Police Misconduct.” George Washington Law Review 72: 453546.Google Scholar
Bacon, John and Welch, William M., 2015. “Tulsa Reserve Deputy Charged with Manslaughter.” USA Today, April 13.Google Scholar
Baker, Al. 2008. “Eleven Years of Police Gunfire, in Painstaking Detail.” New York Times, May 8.Google Scholar
Baker, Thomas E. 1994. Rationing Justice on Appeal: The Problems of the U.S. Courts of Appeals. New York: West Publishing.Google Scholar
Barkan, Ross. 2015. “NYPD Inspector General Finds ‘Troubling Deficiencies’ in Punishment of Chokeholds.” New York Observer, January 12.Google Scholar
Barnes, Jeb. 2007. “Bringing the Courts Back In: Interbranch Perspectives on the Role of Courts in American Politics and Policy Making.” Annual Review of Political Science 10: 2543.CrossRefGoogle Scholar
Berman, Mark. 2015. “Protests Continue in Madison after Shooting; Police Chief Apologizes to Community.” Washington Post, March 9.Google Scholar
Blackmun, Harry A. 1985. “Section 1983 and Federal Protection of Individual Rights—Will the Statute Remain Alive or Fade Away.” New York University Law Review 60: 129.Google Scholar
Blum, Karen M. 2005. “Suing Sheriffs under Section 1983.” Stetson Law Review 34: 623–74.Google Scholar
Blum, Karen M. 2015. “Section 1983 Litigation: The Maze, the Mud, and the Madness.” William & Mary Bill of Rights Journal 23: 913–64.Google Scholar
Boone, Christian, 2014. “No Charges for Officers in Botched Raid that Disfigured Toddler.” Atlanta Journal-Constitution, October 6.Google Scholar
Bosman, Julie and Goode, Erica, 2014. “F.B.I. Steps in Amid Unrest After Police Kill Missouri Youth.” New York Times, August 12.Google Scholar
Brookings Institute. 2015. “Panel: What’s Next in the National Conversation about Race and Policing in America?” March 3.Google Scholar
Burke, Thomas F. 2002. Lawyers, Lawsuits, and Legal Rights. Berkeley, CA: University of California Press.Google Scholar
Capehart, Jonathan, 2015. “From Trayvon Martin to ‘Black Lives Matter.’” Washington Post, February 27.Google Scholar
Carp, Robert A., Manning, Kenneth L., and Stidham, Ronald. 2013. “A First Term Assessment: The Ideology of Barack Obama’s District Court Appointees.” Judicature 97: 128–36.Google Scholar
Capps, Kristin. 2014. “The Unprecedented Scale of the #BlackLivesMatter Protests.” The Atlantic, City Lab, December 5.Google Scholar
Casselman, Ben. 2014. “It’s Incredibly Rare for a Grand Jury to Do What Ferguson’s Just Did.” FiveThirtyEight.com, November 24.Google Scholar
Chemerinsky, Erwin. 2011. The Conservative Assault on the Constitution. New York: Simon & Schuster.Google Scholar
Chemerinsky, Erwin. 2014a. “How the Supreme Court Protects Bad Cops.” New York Times, August 26.Google Scholar
Chemerinsky, Erwin. 2014b. “Op-ed: Police Dodge Accountability for Deaths.” Orange County Register. December 5.Google Scholar
Chen, Alan. 2006. “The Facts about Qualified Immunity.” Emory Law Journal 55: 229–78.Google Scholar
Chen, Alan. 2013. “Rights Lawyer Essentialism and the Next Generation of Civil Rights Critics.” Michigan Law Review 111: 903.Google Scholar
Cooper, Matthew. 2013. “Starting the Filibuster Fire.” National Journal, October 2.Google Scholar
Cooper, Phillip J. 1988. Hard Judicial Choices. New York, NY: Oxford University Press.Google Scholar
Crary, David. 2014. “AP Poll: Police Killings of Blacks Voted Top Story of 2014.” Yahoo News, December 22.Google Scholar
Dewan, Shaila and Oppel, Richard A. Jr. 2015. “In the Tamir Rice Case, Many Errors by Cleveland Police, Then a Fatal One.” New York Times, January 22.Google Scholar
Dodd, Lynda G. 2004. “Implementing the Rule of Law: The Role of Citizen-Plaintiffs. The Good Society 13: 3644.CrossRefGoogle Scholar
Dodd, Lynda G. 2010. “Presidential Leadership and Civil Rights Lawyering in the Era Before Brown.” Indiana Law Journal 84: 1599–657.Google Scholar
Driver, Justin. 2011. “Obama’s Law.” New Republic, June 9.Google Scholar
Eisen, Lauren-Brooke. 2014. “Are More Criminal Justice Reforms on the Horizon in 2015? The Brennan Center for Justice Blog, December 29.Google Scholar
Eisenberg, Theodore. 2013. “40 Years of Federal Civil Rights Litigation.” Unpublished manuscript. Cornell University School of Law.Google Scholar
Eisenberg, Theodore and Schwab, Stewart J. 1987. “The Reality of Constitutional Tort Litigation.” Cornell Law Review 72: 641–95.Google Scholar
Engstrom, David Freeman. 2013. “The Twiqbal Empirical Puzzle and the Study of Civil Procedure.” Stanford Law Review 65: 1203–48.Google Scholar
Epp, Charles R. 1998. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago, IL: University of Chicago Press.CrossRefGoogle Scholar
Epp, Charles R. 2009. Making Rights Real: Activists, Bureaucrats, and the Creation of the Legalistic State. Chicago, IL: University of Chicago Press.CrossRefGoogle Scholar
Epp, Charles R., Maynard-Moody, Steven, and Haider-Markel, Donald P.. 2014. Pulled Over: How Police Stops Define Race and Citizenship. Chicago, IL: University of Chicago Press.CrossRefGoogle Scholar
Farhang, Sean. 2010. The Litigation State: Public Regulation and Private Lawsuits in the U.S. Princeton, NJ: Princeton University Press.CrossRefGoogle Scholar
Farhang, Sean and Burbank, Stephen B.. 2014. “Reforming Civil Litigation: Why the Courts Succeed Where Congress Failed.” Unpublished manuscript. University of California - Berkeley.Google Scholar
Feeley, Malcom and Rubin, Edward. 1999. Judicial Policy Making and the Modern State. New York: Cambridge University Press.Google Scholar
Fischer-Baum, Reuben. 2014. “Nobody Knows How Many Americans the Police Kill Each Year.” FiveThirtyEight.com. August 19.Google Scholar
Fontana, David. 2014. “Not Your Law School Graduation Speaker: Progressive Law Students Won’t Hear From the Lions of the Warren Court Again this Week.” Slate. June 5.Google Scholar
Ford, Richard Thompson. 2011. Rights Gone Wrong: How Law Corrupts the Struggle for Equality. New York: Farrar, Straus, and Giroux.Google Scholar
Francis, Megan. 2014. Civil Rights and the Making of the Modern American State. Cambridge: Cambridge University Press.CrossRefGoogle Scholar
Gabrielson, Ryan, Grochowski Jones, Ryann, and Sagara, Eric. 2014. “Deadly Force, in Black and White.” ProPublica, October 10.Google Scholar
Galanter, Marc. 1983. “Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) about Our Allegedly Contentious and Litigious Society.” University of California Los Angeles Law Review 31: 471.Google Scholar
Garrett, Brandon. 2012. “Aggregation and Constitutional Rights.” Notre Dame Law Review 88: 593648.Google Scholar
Gilles, Myriam E. 2008. “Police, Race and Crime in 1950s Chicago: Monroe v. Pape as Legal Noir.” In Civil Rights Stories, ed. Gilles, Myriam E. and Goluboff, Risa L.. New York: Foundation Press.Google Scholar
Goff, Phillip Atiba. 2014. “America’s Lack of a Police Behavior Database is a Disgrace. That’s Why I’m Leading a Team to Build One.” New Republic, August 25.Google Scholar
Gokavi, Mark. 2014. “Walmart Shooting: Family Attorney says Crawford Did Nothing Wrong.” Dayton Daily News, September 26.Google Scholar
Goldstein, Joseph and Schweber, Nate. 2014. “Man’s Death after Chokehold Raises Old Issue for the Police.” New York Times, July 18.Google Scholar
Golgowski, Nina, Murphy, Doyle, and Silverstein, Jason. 2015. “University of Virginia Student’s Bloody Arrest Sparks Massive Protest, Governor’s Call for Investigation.” New York Daily News, March 19.Google Scholar
Gottschalk, Marie. 2014. Caught: The Prison State and the Lockdown of American Politics. Princeton, NJ: Princeton University Press.Google Scholar
Gross, Allie and Schatz, Bryan. 2014. “Congress is Finally Going to Make Local Law Enforcement Report How Many People They Kill.” Mother Jones, December 17.Google Scholar
Haire, Susan, Edwards, Barry, and Hughes, David. 2013. “Presidents and Courts of Appeals: The Voting Behavior of Obama’s Appointees.” Judicature 97(3): 137–43.Google Scholar
Harmon, Rachel. 2009. “Promoting Civil Rights through Proactive Policing Reform.” Stanford Law Review 62: 170.Google Scholar
Heisig, Eric. 2015. “Amended Lawsuit Filed by Tamir Rice’s Family in Case against the City of Cleveland.” Cleveland.com. January 30.Google Scholar
Hollis-Brusky, Amanda. 2015. Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution. New York: Oxford University Press.Google Scholar
Howard, Philip K. 1997. The Death of Common Sense: How Law is Suffocating America. New York: Random House.Google Scholar
Horwitz, Sari, Leaning, Carol D. and Kindy, Kimberly. 2014. “Justice Department to Probe Ferguson Police Force.” Washington Post, September 3.Google Scholar
Irons, Peter. 1990. The Courage of Their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court. New York: Penguin Press.Google Scholar
Izadi, Elahe. 2014. “John Crawford’s Family Sue Wal-Mart, Ohio Town Police for Wrongful Death.” Washington Post, December 16.Google Scholar
Jacobs, Lawrence R. and King, Desmond S.. 2010. “Varieties of Obamism: Structure, Agency, and the Obama Presidency.” Perspectives on Politics, 8: 793802.CrossRefGoogle Scholar
Jeffries, John C. 1998. “In Praise of the Eleventh Amendment and Section 1983.” Virginia Law Review 84: 4782.CrossRefGoogle Scholar
Jois, Goutam U. 2010. Pearson, Iqbal, and Procedural Judicial Activism.” Florida State University Law Review 27: 901–44.Google Scholar
Johnson, Kevin. 2014. “Police Killings Highest in Two Decades.” USA Today, November 11.Google Scholar
Johnson, Kevin. 2015. “FBI Will Overhaul Crime Report, Add Missing Crimes.” USA Today, April 2.Google Scholar
Juzwiak, Rich and Chen, Aleksander. 2014. “Unarmed People of Color Killed by Police, 1999–2014.” Gawker, December 8.Google Scholar
Kagan, Ronald A. 2001. Adversarial Legalism: The American Way of Law. Cambridge, MA: Harvard University Press.CrossRefGoogle Scholar
Kamen, Al. 2014. “Obama Judges Tip Appeals Court to Democrats.” Washingtonpost.com, May 29.Google Scholar
Kang, Jay Caspian. 2015. “‘Our Demand Is Simple: Stop Killing Us’: How a Group of Black Social Media Activists Built the Nation’s First 21st-Century Civil Rights Movement.” New York Times Magazine, May 4.Google Scholar
Karlan, Pamela S. 2003. “David C. Baum Memorial Lecture: Disarming the Private Attorney General.” University of Illinois Law Review 2003: 183.Google Scholar
Karlan, Pamela S. 2012. “What’s a Right without a Remedy?” Boston Review, March 1.Google Scholar
Kindy, Kimberly and Kelly, Kimbriell. 2015. “Thousands Dead, Few Prosecuted.” Washington Post, April 11.Google Scholar
King, Desmond S. and Smith, Rogers M.. 2011. Still a House Divided: Race and Politics in Obama's America. Princeton, NJ: Princeton University Press.Google Scholar
Kinports, Kit. 1997. “The Buck Does Not Stop Here: Supervisory Liability in Section 1983 Cases.” University of Illinois Law Review 1997: 147–92.Google Scholar
Klarman, Michael J. 2004. From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality. New York: Oxford University Press.CrossRefGoogle Scholar
Klinkner, Philip. A. and Schaller, Thomas. 2009. “LBJ’s Revenge: The 2008 Election and the Rise of the Great Society Coalition.” The Forum 6: 117.CrossRefGoogle Scholar
Kloppenberg, James T. 2011. Reading Obama: Dreams, Hope, & the American Political Tradition. Princeton, NJ: Princeton University Press.Google Scholar
Lawyers’ Committee for Civil Rights under Law. 2014. “A United Statement of Action to Promote Reform and Stop Police Abuse.” August 18.Google Scholar
Leber, Rebecca. 2014. “The Feds’ Ferguson Investigation is the Most Meaningful Action since Michael Brown’s Death.” New Republic, September 4.Google Scholar
Lee, Jaeah. 2014. “Here’s the Data That Shows Cops Kill Black People at a Higher Rate than White People.” Mother Jones, September 10.Google Scholar
Lemieux, Scott. 2014. “The Justice Department’s Next Move: Darren Wilson Is Small Fish. DOJ Should Go After the Whole Pond.” Slate, November 26.Google Scholar
Lerman, Amy E. and Weaver, Vesla M.. 2014. Resisting Citizenship: The Democratic Consequences of Crime Control. Chicago, IL: University of Chicago Press.CrossRefGoogle Scholar
Levinson, Daryl J. 2000. “Making Government Pay: Markets, Politics and the Allocation of Constitutional Costs.” University of Chicago Law Review 67: 345420.CrossRefGoogle Scholar
Levy, Marin K. 2013. “Judging the Flood of Litigation.” University of Chicago Law Review 80: 1007–77.Google Scholar
Lewis, John. 2008. “Rep. Lewis, Sen. Kennedy Introduce Civil Rights Act of 2008.” Press release, January 23.Google Scholar
Lieberman, Robert C. 2007. “Private Power and American Bureaucracy: The EEOC and Civil Rights Enforcement.” Unpublished manuscript. Columbia University.Google Scholar
Lopez, German. 2015. “Study: More than Half of People Killed by Police Aren’t Counted by the FBI.” Vox.com, March 5.Google Scholar
Lowell, James Russell. 1888. “The Place of the Independent in Politics.” In Political Essays. Boston, MA: Houghton & Mifflin.Google Scholar
Marbella, Jean. 2015. “Six Baltimore Police Charged in Freddie Gray’s Death.” Baltimore Sun, May 2.Google Scholar
Markon, Jerry. 2010. “Justice Dept. Steps Up Civil Rights Enforcement: Division Reshapes Itself After Employee Exodus During Bush Era.” Washington Post, June 4.Google Scholar
Markon, Jerry and Murray, Shailagh. 2011. “Judicial Vacancies Reach a Crisis Point.” Washington Post, February 8.Google Scholar
McCann, Michael and Haltom, William. 2004. Distorting the Law: Politics, Media, and the Litigation Crisis. Chicago, IL: University of Chicago Press.Google Scholar
Melnick, R. Shep. 2011. “The Supreme Court and the Civil Rights State.” Unpublished manuscript. Boston College.Google Scholar
Melnick, R. Shep. 2012. “Adversarial Legalism, Civil Rights, and the Exceptional American State.” Unpublished manuscript. Boston College.Google Scholar
Melnick, R. Shep. 2014. “The Odd Evolution of the Civil Rights State.” Harvard Journal of Law & Public Policy 37: 113–34.Google Scholar
Mettler, Suzanne. 2010. “Reconstituting the Submerged State: The Challenges of Social Policy Reform in the Obama Era.” Perspectives on Politics 8(3): 803–24.CrossRefGoogle Scholar
Milkis, Sidney M., Rhodes, Jesse H. and Charnock, Emily. 2012. “What Happened to Post-Partisanship? Barack Obama and the New American Party System.” Perspectives on Politics 10(3): 5776.CrossRefGoogle Scholar
Miller, Arthur R. 2003. “The Pre-Trial Rush to Judgment: Are the ‘Litigation Explosion’, ‘Liability Crisis’, and Efficiency Cliches Eroding Our Day in Court and Jury Trial Commitments?” New York University Law Review 78: 9821134.Google Scholar
Miller, Arthur R. 2013. “Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformations of Federal Procedure.” New York University Law Review 88: 286372.Google Scholar
Moore, Tina and Hutchinson, Bill. 2014. “Family of Eric Garner Plan to Sue NYPD and the City for $75 Million.” New York Daily News, October 7.Google Scholar
Morgan, Denise, Godsil, Rachel D., and Moses, Joy, eds. Awakening from the Dream: Civil Rights Under Siege and the New Struggle for Equal Justice. 2006. Durham, NC: Carolina Academic Press.Google Scholar
Mueller, Benjamin and Southall, Ashley. 2014. “25,000 March in New York to Protest Police Violence.” New York Times, December 13.Google Scholar
Mulroy, Quinn W. 2012. “Public Regulation Through Private Litigation: The Regulatory Power of Private Lawsuits and the American Bureaucracy.” Ph.D. diss., Political Science, Columbia University.Google Scholar
Murakawa, Naomi. 2014. The First Civil Right: How Liberals Built Prison America. New York: Oxford University Press.Google Scholar
Myers, Jennifer. 2001. “No Talk of Retirement at Circuit Meeting.” Legal Times, July 9.Google Scholar
NeJaime, Douglas. 2012. “Cause Lawyers Inside the State.” Fordham Law Review 81: 649704.Google Scholar
Obama, Barack. 2006. The Audacity of Hope: Thoughts on Reclaiming the American Dream. New York: Crown.Google Scholar
Obama, Barack. 2007. “Remarks at the Selma Voting Rights March Commemoration in Selma, Alabama,” March 4. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=77042.Google Scholar
Obama, Barack. 2009. “Remarks Celebrating the 100th Anniversary of the NAACP in New York City,” July 16. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=86429.Google Scholar
Obama, Barack. 2014. “Remarks at the Lyndon B. Johnson Presidential Library Civil Rights Summit in Austin, Texas,” April 10. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=105105.Google Scholar
Obama, Barack. 2015a. “Remarks at an African American History Month Reception,” February 26. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=109685.Google Scholar
Obama, Barack. 2015b. “Remarks Commemorating the 50th Anniversary of the Selma to Montgomery Marches for Voting Rights in Selma, Alabama,” March 7. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=109728.Google Scholar
Olson, Walter. 1991. The Litigation Explosion: What Happened When America Unleashed the Lawsuit. New York: Dutton.Google Scholar
Pew Research Center for the People & the Press. 2013. “Big Racial Divide over Zimmerman Verdict: Whites Say Too Much Focus on Race, Blacks Disagree.” July 22.Google Scholar
Pew Research Center for the People & the Press. 2014. “Sharp Racial Divisions in Reactions to Brown, Garner Decisions.” December 8.Google Scholar
Powe, Lucas Scot Jr. 2000. The Warren Court and American Politics. Cambridge, MA: Harvard University Press.Google Scholar
Posner, Richard A. 1996. The Federal Courts: Challenge and Reform. Cambridge, MA: Harvard University Press.CrossRefGoogle Scholar
President’s Task Force on 21st Century Policing. 2015. Interim Report of the President’s Task Force on 21st Century Policing. Washington, DC: Office of Community Oriented Policing Services.Google Scholar
Ramsey, Donovan X. 2015. “White America’s Silence on Police Brutality Is Consent.” Gawker Justice. April 10.Google Scholar
Rector, Kevin. 2015. “The 45-Minute Mystery of Freddie Gray’s Death.” Baltimore Sun, April 25.Google Scholar
Remnick, David. 2010. The Bridge: The Life and Rise of Barack Obama. New York: Vintage Books.Google Scholar
Resnik, Judith. 1997. “Changing Practices, Changing Rules: Judicial and Congressional Rulemaking on Civil Juries, Civil Justice, and Civil Judging.” Alabama Law Review 49: 133219.Google Scholar
Rosenberg, Gerald. 1991. The Hollow Hope: Can Courts Achieve Social Change? Chicago, IL: University of Chicago Press.Google Scholar
Rothfeld, Charles A. 1979. “Section 1983 Municipal Liability and the Doctrine of Respondeat Superior.” University of Chicago Law Review 46: 935–70.CrossRefGoogle Scholar
Rudovsky, David. 1989. “The Qualified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of Constitutional Rights.” University of Pennsylvania Law Review 138: 2381.CrossRefGoogle Scholar
Rudovsky, David. 1992. “Police Abuse: Can the Violence Be Contained?” Harvard Civil Rights-Civil Liberties Law Review 27: 465501.Google Scholar
Ruger, Todd. 2013. “No More Mr. Nice President: Obama’s D.C. Circuit Picks Signal a Tougher Approach.” National Law Journal, June 10.Google Scholar
Ruger, Todd. 2014. “Obama Criticized for Nominating Mostly Corporate Lawyers.” National Law Journal, February 6.Google Scholar
Rushin, Stephen. 2014. “Federal Enforcement of Police Reform.” Fordham Law Review 82: 3189–247.Google Scholar
Savage, Charles. 2006. “Civil Rights Hiring Shifted in Bush Era; Conservative Leanings Stressed.” Boston Globe, July 23.Google Scholar
Savage, Charles. 2009. “White House to Shift Efforts on Civil Rights.” New York Times, September 1.Google Scholar
Scheingold, Stuart. 2004. The Politics of Rights: Lawyers, Public Policy, and Political Change. 2d ed. Ann Arbor, MI: University of Michigan Press.CrossRefGoogle Scholar
Schlanger, Margo. 2003. “Inmate Litigation.” Harvard Law Review 116: 1555–706.CrossRefGoogle Scholar
Schlanger, Margo. 2006. “Civil Rights Injunctions over Time: A Case Study of Jail and Prison Court Orders.” New York University Law Review 81: 550630.Google Scholar
Schlanger, Margo. 2015. “Trends in Prisoner Litigation, as the PLRA Enters Adulthood.” University of California-Irvine Law Review 5: 153178.Google Scholar
Schmidt, Michael. 2015a. “A Call to Better Track Police Use of Guns, Holder Urges Better Data on Shootings Involving Police.” New York Times, January 15.Google Scholar
Schmidt, Michael. 2015b. “Comey Speaks Out on Race and Police.” New York Times, February 12.Google Scholar
Schmidt, Michael. 2015c. “Scant Data Frustrates Efforts to Assess Number of Shootings by Police.” New York Times, April 8.Google Scholar
Schmidt, Michael, and Apuzzo, Matt. 2015. “South Carolina Officer Is Charged with Murder of Walter Scott.” New York Times, April 7.Google Scholar
Schmidt, Michael, and Fernandez, Manny. 2014. “Justice Dept. Inquiry to Focus on Practices of Police in Ferguson.” New York Times, September 3.Google Scholar
Schuck, Peter. 1983. Suing Government: Citizen Remedies for Official Wrongs. New Haven, CT: Yale University Press.Google Scholar
Schwartz, Martin. 2009. “Supreme Court Sets Standards for Civil Rights Complaints. New York Law Journal, August 3.Google Scholar
Schwartz, Joanna C. 2010. “Myths and Mechanics of Deterrence: The Role of Lawsuits in Law Enforcement Decisionmaking.” University of California Los Angeles Law Review 57: 1023–94.Google Scholar
Schwartz, Joanna C. 2014. “Police Indemnification.” New York University Law Review 89: 8851004.Google Scholar
Shapo, Marshall S. 1965. “Constitutional Tort: Monroe v. Pape and the Frontiers Beyond.” Northwestern University Law Review 60: 277329.Google Scholar
Shapo, Marshall S. 2001. “Symposium, Re-Examining First Principles: Deterrence and Corrective Justice in Constitutional Torts: Afterword.” Georgia Law Review 35: 931–37.Google Scholar
Silveira, Matthew J. 2004. “An Unexpected Application of 42 U.S.C. § 14141: Using Investigative Findings for § 1983 Litigation.” University of California Los Angeles Law Review 52: 601–37.Google Scholar
Silverstein, Gordon. 2009. Law’s Allure: How Law Shapes, Constrains, Saves, and Kills Politics. Berkeley, CA: University of California Press.CrossRefGoogle Scholar
Skocpol, Theda, and Jacobs, Lawrence, eds. 2011. Reaching for a New Deal: Ambitious Governance, Economic Meltdown, and Polarized Politics in Obama's First Two Years. New York: Russell Sage Foundation.Google Scholar
Skocpol, Theda, and Jacobs, Lawrence 2012. “Accomplished and Embattled: Understanding Obama's Presidency.” Political Science Quarterly 127: 124.CrossRefGoogle Scholar
Smith, Rogers M., King, Desmond, and Klinkner, Philip A.. 2011 “Challenging History: Barack Obama & American Racial Politics.” Daedalus 140: 121–35.CrossRefGoogle Scholar
Southworth, Ann. 2008. Lawyers on the Rights: Professionalizing the Conservative Coalition. Chicago, IL: University of Chicago Press.CrossRefGoogle Scholar
Staszak, Sarah. 2010. “Institutions, Rulemaking, and the Politics of Judicial Retrenchment.” Studies in American Political Development 24: 168–89.CrossRefGoogle Scholar
Staszak, Sarah. 2015. No Day in Court: Access to Justice and the Politics of Judicial Retrenchment. New York: Oxford University Press.CrossRefGoogle Scholar
Sugrue, Thomas. 2010. Not Even Past: Barack Obama and the Burdens of Race. Princeton, NJ: Princeton University Press.CrossRefGoogle Scholar
Tebo, Margaret. 2003. “Fee-Shifting Fallout.” ABA Journal, July.Google Scholar
Teles, Steven. 2008. The Rise of the Conservative Legal Movement: The Battle for the Control of the Law. Princeton, NJ: Princeton University Press.CrossRefGoogle Scholar
Thompson, John. 2011. “The Prosecution Rests, But I Can’t.” New York Times, April 10.Google Scholar
Toobin, Jeffrey. 2014.“Holder v. Roberts: The Attorney General Makes Voting Rights the Test Case of His Tenure.” New Yorker, February 17 and 24.Google Scholar
United States Department of Justice, Civil Rights Division. 2015a. Department of Justice Report Regarding the Criminal Investigation into the Shooting Death of Michael Brown by Ferguson, Missouri Police Officer Darren Wilson. March 4.Google Scholar
United States Department of Justice, Civil Rights Division. 2015b. Investigation of the Ferguson Police Department. March 4.Google Scholar
Vega, Tanzina, and Eligon, John. 2014. “Deep Tensions Rise to Surface after Ferguson Shooting.” New York Times, August 16.Google Scholar
Vives, Ruben. 2014. “Ezell Ford’s Parents File a Wrongful Death Lawsuit against LAPD.” Los Angeles Times, September 17.Google Scholar
Vives, Ruben, Winton, Richard and Mather, Kate. “After LAPD Kills Mentally Ill Man, Activists Demand Answers.” Los Angeles Times, August 14.Google Scholar
Voorhees, Josh. 2014. “Can Anyone Fix the Ferguson Police Department?” Slate. August 18.Google Scholar
Walker, Samuel E. and Archbold, Carol A.. 2014. The New World of Police Accountability. 2d ed. Los Angeles, CA: Sage Publications.Google Scholar
Ward, Artemus and Pickerill, Mitchell. 2013. “Minimalism Is Alive and Well on the Roberts Court.” National Law Journal, July 3.Google Scholar
Weinberg, Louise. 1977. “The New Judicial Federalism.” Stanford Law Review 29: 1191–244.CrossRefGoogle Scholar
Weiser, Benjamin. 2014. “New York City Comptroller Seeks to Settle Claim by Eric Garner’s Family.” New York Times, December 16.Google Scholar
Wells, Georgia. 2014. “Ferguson to New York, Social Media Is the Organizers Biggest Megaphone.” Wall Street Journal, December 4.Google Scholar
White, House. 2014. President Obama’s Judicial Nominees: Creating a Judicial Pool that Resembles the Nation It Serves. May 5. http://www.whitehouse.gov/share/judicial-nominations Google Scholar
Wolf, Richard. 2012. “Obama Determined to Fill Federal Judgeships.” USA Today, November 28.Google Scholar
Yackle, Larry. 1994. Reclaiming the Federal Courts. Cambridge, MA: Harvard University Press.Google Scholar
Anderson v. Creighton, 483 U.S. 635 (1987).CrossRefGoogle Scholar
Associated Industries of New York State v. Ickes, 134 F.2d 694 (2d Cir. 1943).Google Scholar
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).Google Scholar
Bd. of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001).Google Scholar
Bd. of the County Commissioners of Bryan County v. Brown, 520 U.S. 397 (1997).Google Scholar
Brady v. Maryland, 373 U.S. 83 (1963). CrossRefGoogle Scholar
Buckhannon Board & Care Home v. W. Va. Dep’t of Health and Services, 532 U.S. 598 (2001).Google Scholar
Bush v. Gore, 531 U.S. 98 (2000).Google Scholar
City of Canton v. Harris, 489 U.S. 378 (1989).Google Scholar
City of Los Angeles v. Lyons, 461 U.S. 95 (1983).Google Scholar
City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985).Google Scholar
Connick v. Thompson, 131 S.Ct. 1350 (2011).CrossRefGoogle Scholar
Ex parte Young, 209 U.S. 123 (1908).Google Scholar
Floyd v. New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013).Google Scholar
Graham v. Connor, 490 U.S. 386 (1989).Google Scholar
Hafer v. Melo, 502 U.S. 21 (1991).CrossRefGoogle Scholar
Harlow v. Fitzgerald, 457 U.S. 800 (1982).Google Scholar
Hope v. Pelzer, 536 U.S. 730 (2002).CrossRefGoogle Scholar
Iqbal v. Ashcroft, 556 U.S. 662 (2009).Google Scholar
Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000).CrossRefGoogle Scholar
Lane v. Franks, 134 S.Ct. 2369 (2014).CrossRefGoogle Scholar
Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).Google Scholar
McMillian v. Monroe County, 520 US. 781 (1997).Google Scholar
Mitchell v. Forsyth, 472 U.S. 511 (1985).Google Scholar
Monell v. New York City Dep't of Social Services, 436 U.S. 658 (1978).Google Scholar
Monroe v. Pape, 365 U.S. 167(1961).Google Scholar
Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003).Google Scholar
Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968).CrossRefGoogle Scholar
Pearson v. Callahan, 555 U.S. 223 (2009).Google Scholar
Pierson v. Ray, 386 U.S. 547 (1967).Google Scholar
Plumhoff v. Rickard, 134 S.Ct. 2012 (2014).CrossRefGoogle Scholar
Quern v. Jordan, 440 U.S. 332 (1979).Google Scholar
Rizzo v. Goode, 423 U.S. 362 (1976).Google Scholar
Saucier v. Katz, 533 U.S. 194 (2001).CrossRefGoogle Scholar
Scheuer v. Rhodes, 416 U.S. 232 (1974).Google Scholar
Screws v. United States, 325 U.S. 91 (1945).Google Scholar
Tennessee v. Garner, 471 U.S. 1 (1985).Google Scholar
Terebisi v. Terreso, 764 F.3d 217 (2d Cir. 2014).Google Scholar
Van de Kamp v. Goldstein, 129 S.Ct. 855 (2009).Google Scholar
Will v. Michigan Department of State Police, 491 U.S. 98 (1989).Google Scholar
Wood v. Moss, 134 S.Ct. 2056 (2014).CrossRefGoogle Scholar
Wood v. Strickland, 420 U.S. 308 (1977).Google Scholar
Achtenberg, David. 2005. “Taking History Seriously: Municipal Liability Under 42 U.S.C.§ 1983 and the Debate Over Respondeat Superior.” Fordham Law Review 73: 2183–248.Google Scholar
Ackerman, Bruce. 2014. We the People, Vol. III: The Civil Rights Revolution. Cambridge, MA: Belknap Press.Google Scholar
Addo, Koran. 2015. “Michael Brown’s Family Files Wrongful Death Lawsuit.” St. Louis Post-Dispatch, April 24.Google Scholar
Albiston, Catherine R. and Nielsen, Laura Beth. 2007. “The Procedural Attack on Civil Rights: The Empirical Reality of Buckhannon for the Private Attorney General.” University of California Los Angeles Law Review 54: 1087–134.Google Scholar
Appuzo, Matt and Fernandez, Manny. 2014. “Justice Dept. Inquiry to Focus on Practices of Police in Ferguson.” New York Times, September 3.Google Scholar
Appuzo, Matt and Steinhauer, Jennifer. 2015. “As Attorney General, Loretta Lynch Plans Striking New Tone for the Justice Department.” New York Times, April 23.Google Scholar
Armacost, Barbara E. 2004. “Organizational Culture and Police Misconduct.” George Washington Law Review 72: 453546.Google Scholar
Bacon, John and Welch, William M., 2015. “Tulsa Reserve Deputy Charged with Manslaughter.” USA Today, April 13.Google Scholar
Baker, Al. 2008. “Eleven Years of Police Gunfire, in Painstaking Detail.” New York Times, May 8.Google Scholar
Baker, Thomas E. 1994. Rationing Justice on Appeal: The Problems of the U.S. Courts of Appeals. New York: West Publishing.Google Scholar
Barkan, Ross. 2015. “NYPD Inspector General Finds ‘Troubling Deficiencies’ in Punishment of Chokeholds.” New York Observer, January 12.Google Scholar
Barnes, Jeb. 2007. “Bringing the Courts Back In: Interbranch Perspectives on the Role of Courts in American Politics and Policy Making.” Annual Review of Political Science 10: 2543.CrossRefGoogle Scholar
Berman, Mark. 2015. “Protests Continue in Madison after Shooting; Police Chief Apologizes to Community.” Washington Post, March 9.Google Scholar
Blackmun, Harry A. 1985. “Section 1983 and Federal Protection of Individual Rights—Will the Statute Remain Alive or Fade Away.” New York University Law Review 60: 129.Google Scholar
Blum, Karen M. 2005. “Suing Sheriffs under Section 1983.” Stetson Law Review 34: 623–74.Google Scholar
Blum, Karen M. 2015. “Section 1983 Litigation: The Maze, the Mud, and the Madness.” William & Mary Bill of Rights Journal 23: 913–64.Google Scholar
Boone, Christian, 2014. “No Charges for Officers in Botched Raid that Disfigured Toddler.” Atlanta Journal-Constitution, October 6.Google Scholar
Bosman, Julie and Goode, Erica, 2014. “F.B.I. Steps in Amid Unrest After Police Kill Missouri Youth.” New York Times, August 12.Google Scholar
Brookings Institute. 2015. “Panel: What’s Next in the National Conversation about Race and Policing in America?” March 3.Google Scholar
Burke, Thomas F. 2002. Lawyers, Lawsuits, and Legal Rights. Berkeley, CA: University of California Press.Google Scholar
Capehart, Jonathan, 2015. “From Trayvon Martin to ‘Black Lives Matter.’” Washington Post, February 27.Google Scholar
Carp, Robert A., Manning, Kenneth L., and Stidham, Ronald. 2013. “A First Term Assessment: The Ideology of Barack Obama’s District Court Appointees.” Judicature 97: 128–36.Google Scholar
Capps, Kristin. 2014. “The Unprecedented Scale of the #BlackLivesMatter Protests.” The Atlantic, City Lab, December 5.Google Scholar
Casselman, Ben. 2014. “It’s Incredibly Rare for a Grand Jury to Do What Ferguson’s Just Did.” FiveThirtyEight.com, November 24.Google Scholar
Chemerinsky, Erwin. 2011. The Conservative Assault on the Constitution. New York: Simon & Schuster.Google Scholar
Chemerinsky, Erwin. 2014a. “How the Supreme Court Protects Bad Cops.” New York Times, August 26.Google Scholar
Chemerinsky, Erwin. 2014b. “Op-ed: Police Dodge Accountability for Deaths.” Orange County Register. December 5.Google Scholar
Chen, Alan. 2006. “The Facts about Qualified Immunity.” Emory Law Journal 55: 229–78.Google Scholar
Chen, Alan. 2013. “Rights Lawyer Essentialism and the Next Generation of Civil Rights Critics.” Michigan Law Review 111: 903.Google Scholar
Cooper, Matthew. 2013. “Starting the Filibuster Fire.” National Journal, October 2.Google Scholar
Cooper, Phillip J. 1988. Hard Judicial Choices. New York, NY: Oxford University Press.Google Scholar
Crary, David. 2014. “AP Poll: Police Killings of Blacks Voted Top Story of 2014.” Yahoo News, December 22.Google Scholar
Dewan, Shaila and Oppel, Richard A. Jr. 2015. “In the Tamir Rice Case, Many Errors by Cleveland Police, Then a Fatal One.” New York Times, January 22.Google Scholar
Dodd, Lynda G. 2004. “Implementing the Rule of Law: The Role of Citizen-Plaintiffs. The Good Society 13: 3644.CrossRefGoogle Scholar
Dodd, Lynda G. 2010. “Presidential Leadership and Civil Rights Lawyering in the Era Before Brown.” Indiana Law Journal 84: 1599–657.Google Scholar
Driver, Justin. 2011. “Obama’s Law.” New Republic, June 9.Google Scholar
Eisen, Lauren-Brooke. 2014. “Are More Criminal Justice Reforms on the Horizon in 2015? The Brennan Center for Justice Blog, December 29.Google Scholar
Eisenberg, Theodore. 2013. “40 Years of Federal Civil Rights Litigation.” Unpublished manuscript. Cornell University School of Law.Google Scholar
Eisenberg, Theodore and Schwab, Stewart J. 1987. “The Reality of Constitutional Tort Litigation.” Cornell Law Review 72: 641–95.Google Scholar
Engstrom, David Freeman. 2013. “The Twiqbal Empirical Puzzle and the Study of Civil Procedure.” Stanford Law Review 65: 1203–48.Google Scholar
Epp, Charles R. 1998. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago, IL: University of Chicago Press.CrossRefGoogle Scholar
Epp, Charles R. 2009. Making Rights Real: Activists, Bureaucrats, and the Creation of the Legalistic State. Chicago, IL: University of Chicago Press.CrossRefGoogle Scholar
Epp, Charles R., Maynard-Moody, Steven, and Haider-Markel, Donald P.. 2014. Pulled Over: How Police Stops Define Race and Citizenship. Chicago, IL: University of Chicago Press.CrossRefGoogle Scholar
Farhang, Sean. 2010. The Litigation State: Public Regulation and Private Lawsuits in the U.S. Princeton, NJ: Princeton University Press.CrossRefGoogle Scholar
Farhang, Sean and Burbank, Stephen B.. 2014. “Reforming Civil Litigation: Why the Courts Succeed Where Congress Failed.” Unpublished manuscript. University of California - Berkeley.Google Scholar
Feeley, Malcom and Rubin, Edward. 1999. Judicial Policy Making and the Modern State. New York: Cambridge University Press.Google Scholar
Fischer-Baum, Reuben. 2014. “Nobody Knows How Many Americans the Police Kill Each Year.” FiveThirtyEight.com. August 19.Google Scholar
Fontana, David. 2014. “Not Your Law School Graduation Speaker: Progressive Law Students Won’t Hear From the Lions of the Warren Court Again this Week.” Slate. June 5.Google Scholar
Ford, Richard Thompson. 2011. Rights Gone Wrong: How Law Corrupts the Struggle for Equality. New York: Farrar, Straus, and Giroux.Google Scholar
Francis, Megan. 2014. Civil Rights and the Making of the Modern American State. Cambridge: Cambridge University Press.CrossRefGoogle Scholar
Gabrielson, Ryan, Grochowski Jones, Ryann, and Sagara, Eric. 2014. “Deadly Force, in Black and White.” ProPublica, October 10.Google Scholar
Galanter, Marc. 1983. “Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) about Our Allegedly Contentious and Litigious Society.” University of California Los Angeles Law Review 31: 471.Google Scholar
Garrett, Brandon. 2012. “Aggregation and Constitutional Rights.” Notre Dame Law Review 88: 593648.Google Scholar
Gilles, Myriam E. 2008. “Police, Race and Crime in 1950s Chicago: Monroe v. Pape as Legal Noir.” In Civil Rights Stories, ed. Gilles, Myriam E. and Goluboff, Risa L.. New York: Foundation Press.Google Scholar
Goff, Phillip Atiba. 2014. “America’s Lack of a Police Behavior Database is a Disgrace. That’s Why I’m Leading a Team to Build One.” New Republic, August 25.Google Scholar
Gokavi, Mark. 2014. “Walmart Shooting: Family Attorney says Crawford Did Nothing Wrong.” Dayton Daily News, September 26.Google Scholar
Goldstein, Joseph and Schweber, Nate. 2014. “Man’s Death after Chokehold Raises Old Issue for the Police.” New York Times, July 18.Google Scholar
Golgowski, Nina, Murphy, Doyle, and Silverstein, Jason. 2015. “University of Virginia Student’s Bloody Arrest Sparks Massive Protest, Governor’s Call for Investigation.” New York Daily News, March 19.Google Scholar
Gottschalk, Marie. 2014. Caught: The Prison State and the Lockdown of American Politics. Princeton, NJ: Princeton University Press.Google Scholar
Gross, Allie and Schatz, Bryan. 2014. “Congress is Finally Going to Make Local Law Enforcement Report How Many People They Kill.” Mother Jones, December 17.Google Scholar
Haire, Susan, Edwards, Barry, and Hughes, David. 2013. “Presidents and Courts of Appeals: The Voting Behavior of Obama’s Appointees.” Judicature 97(3): 137–43.Google Scholar
Harmon, Rachel. 2009. “Promoting Civil Rights through Proactive Policing Reform.” Stanford Law Review 62: 170.Google Scholar
Heisig, Eric. 2015. “Amended Lawsuit Filed by Tamir Rice’s Family in Case against the City of Cleveland.” Cleveland.com. January 30.Google Scholar
Hollis-Brusky, Amanda. 2015. Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution. New York: Oxford University Press.Google Scholar
Howard, Philip K. 1997. The Death of Common Sense: How Law is Suffocating America. New York: Random House.Google Scholar
Horwitz, Sari, Leaning, Carol D. and Kindy, Kimberly. 2014. “Justice Department to Probe Ferguson Police Force.” Washington Post, September 3.Google Scholar
Irons, Peter. 1990. The Courage of Their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court. New York: Penguin Press.Google Scholar
Izadi, Elahe. 2014. “John Crawford’s Family Sue Wal-Mart, Ohio Town Police for Wrongful Death.” Washington Post, December 16.Google Scholar
Jacobs, Lawrence R. and King, Desmond S.. 2010. “Varieties of Obamism: Structure, Agency, and the Obama Presidency.” Perspectives on Politics, 8: 793802.CrossRefGoogle Scholar
Jeffries, John C. 1998. “In Praise of the Eleventh Amendment and Section 1983.” Virginia Law Review 84: 4782.CrossRefGoogle Scholar
Jois, Goutam U. 2010. Pearson, Iqbal, and Procedural Judicial Activism.” Florida State University Law Review 27: 901–44.Google Scholar
Johnson, Kevin. 2014. “Police Killings Highest in Two Decades.” USA Today, November 11.Google Scholar
Johnson, Kevin. 2015. “FBI Will Overhaul Crime Report, Add Missing Crimes.” USA Today, April 2.Google Scholar
Juzwiak, Rich and Chen, Aleksander. 2014. “Unarmed People of Color Killed by Police, 1999–2014.” Gawker, December 8.Google Scholar
Kagan, Ronald A. 2001. Adversarial Legalism: The American Way of Law. Cambridge, MA: Harvard University Press.CrossRefGoogle Scholar
Kamen, Al. 2014. “Obama Judges Tip Appeals Court to Democrats.” Washingtonpost.com, May 29.Google Scholar
Kang, Jay Caspian. 2015. “‘Our Demand Is Simple: Stop Killing Us’: How a Group of Black Social Media Activists Built the Nation’s First 21st-Century Civil Rights Movement.” New York Times Magazine, May 4.Google Scholar
Karlan, Pamela S. 2003. “David C. Baum Memorial Lecture: Disarming the Private Attorney General.” University of Illinois Law Review 2003: 183.Google Scholar
Karlan, Pamela S. 2012. “What’s a Right without a Remedy?” Boston Review, March 1.Google Scholar
Kindy, Kimberly and Kelly, Kimbriell. 2015. “Thousands Dead, Few Prosecuted.” Washington Post, April 11.Google Scholar
King, Desmond S. and Smith, Rogers M.. 2011. Still a House Divided: Race and Politics in Obama's America. Princeton, NJ: Princeton University Press.Google Scholar
Kinports, Kit. 1997. “The Buck Does Not Stop Here: Supervisory Liability in Section 1983 Cases.” University of Illinois Law Review 1997: 147–92.Google Scholar
Klarman, Michael J. 2004. From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality. New York: Oxford University Press.CrossRefGoogle Scholar
Klinkner, Philip. A. and Schaller, Thomas. 2009. “LBJ’s Revenge: The 2008 Election and the Rise of the Great Society Coalition.” The Forum 6: 117.CrossRefGoogle Scholar
Kloppenberg, James T. 2011. Reading Obama: Dreams, Hope, & the American Political Tradition. Princeton, NJ: Princeton University Press.Google Scholar
Lawyers’ Committee for Civil Rights under Law. 2014. “A United Statement of Action to Promote Reform and Stop Police Abuse.” August 18.Google Scholar
Leber, Rebecca. 2014. “The Feds’ Ferguson Investigation is the Most Meaningful Action since Michael Brown’s Death.” New Republic, September 4.Google Scholar
Lee, Jaeah. 2014. “Here’s the Data That Shows Cops Kill Black People at a Higher Rate than White People.” Mother Jones, September 10.Google Scholar
Lemieux, Scott. 2014. “The Justice Department’s Next Move: Darren Wilson Is Small Fish. DOJ Should Go After the Whole Pond.” Slate, November 26.Google Scholar
Lerman, Amy E. and Weaver, Vesla M.. 2014. Resisting Citizenship: The Democratic Consequences of Crime Control. Chicago, IL: University of Chicago Press.CrossRefGoogle Scholar
Levinson, Daryl J. 2000. “Making Government Pay: Markets, Politics and the Allocation of Constitutional Costs.” University of Chicago Law Review 67: 345420.CrossRefGoogle Scholar
Levy, Marin K. 2013. “Judging the Flood of Litigation.” University of Chicago Law Review 80: 1007–77.Google Scholar
Lewis, John. 2008. “Rep. Lewis, Sen. Kennedy Introduce Civil Rights Act of 2008.” Press release, January 23.Google Scholar
Lieberman, Robert C. 2007. “Private Power and American Bureaucracy: The EEOC and Civil Rights Enforcement.” Unpublished manuscript. Columbia University.Google Scholar
Lopez, German. 2015. “Study: More than Half of People Killed by Police Aren’t Counted by the FBI.” Vox.com, March 5.Google Scholar
Lowell, James Russell. 1888. “The Place of the Independent in Politics.” In Political Essays. Boston, MA: Houghton & Mifflin.Google Scholar
Marbella, Jean. 2015. “Six Baltimore Police Charged in Freddie Gray’s Death.” Baltimore Sun, May 2.Google Scholar
Markon, Jerry. 2010. “Justice Dept. Steps Up Civil Rights Enforcement: Division Reshapes Itself After Employee Exodus During Bush Era.” Washington Post, June 4.Google Scholar
Markon, Jerry and Murray, Shailagh. 2011. “Judicial Vacancies Reach a Crisis Point.” Washington Post, February 8.Google Scholar
McCann, Michael and Haltom, William. 2004. Distorting the Law: Politics, Media, and the Litigation Crisis. Chicago, IL: University of Chicago Press.Google Scholar
Melnick, R. Shep. 2011. “The Supreme Court and the Civil Rights State.” Unpublished manuscript. Boston College.Google Scholar
Melnick, R. Shep. 2012. “Adversarial Legalism, Civil Rights, and the Exceptional American State.” Unpublished manuscript. Boston College.Google Scholar
Melnick, R. Shep. 2014. “The Odd Evolution of the Civil Rights State.” Harvard Journal of Law & Public Policy 37: 113–34.Google Scholar
Mettler, Suzanne. 2010. “Reconstituting the Submerged State: The Challenges of Social Policy Reform in the Obama Era.” Perspectives on Politics 8(3): 803–24.CrossRefGoogle Scholar
Milkis, Sidney M., Rhodes, Jesse H. and Charnock, Emily. 2012. “What Happened to Post-Partisanship? Barack Obama and the New American Party System.” Perspectives on Politics 10(3): 5776.CrossRefGoogle Scholar
Miller, Arthur R. 2003. “The Pre-Trial Rush to Judgment: Are the ‘Litigation Explosion’, ‘Liability Crisis’, and Efficiency Cliches Eroding Our Day in Court and Jury Trial Commitments?” New York University Law Review 78: 9821134.Google Scholar
Miller, Arthur R. 2013. “Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformations of Federal Procedure.” New York University Law Review 88: 286372.Google Scholar
Moore, Tina and Hutchinson, Bill. 2014. “Family of Eric Garner Plan to Sue NYPD and the City for $75 Million.” New York Daily News, October 7.Google Scholar
Morgan, Denise, Godsil, Rachel D., and Moses, Joy, eds. Awakening from the Dream: Civil Rights Under Siege and the New Struggle for Equal Justice. 2006. Durham, NC: Carolina Academic Press.Google Scholar
Mueller, Benjamin and Southall, Ashley. 2014. “25,000 March in New York to Protest Police Violence.” New York Times, December 13.Google Scholar
Mulroy, Quinn W. 2012. “Public Regulation Through Private Litigation: The Regulatory Power of Private Lawsuits and the American Bureaucracy.” Ph.D. diss., Political Science, Columbia University.Google Scholar
Murakawa, Naomi. 2014. The First Civil Right: How Liberals Built Prison America. New York: Oxford University Press.Google Scholar
Myers, Jennifer. 2001. “No Talk of Retirement at Circuit Meeting.” Legal Times, July 9.Google Scholar
NeJaime, Douglas. 2012. “Cause Lawyers Inside the State.” Fordham Law Review 81: 649704.Google Scholar
Obama, Barack. 2006. The Audacity of Hope: Thoughts on Reclaiming the American Dream. New York: Crown.Google Scholar
Obama, Barack. 2007. “Remarks at the Selma Voting Rights March Commemoration in Selma, Alabama,” March 4. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=77042.Google Scholar
Obama, Barack. 2009. “Remarks Celebrating the 100th Anniversary of the NAACP in New York City,” July 16. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=86429.Google Scholar
Obama, Barack. 2014. “Remarks at the Lyndon B. Johnson Presidential Library Civil Rights Summit in Austin, Texas,” April 10. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=105105.Google Scholar
Obama, Barack. 2015a. “Remarks at an African American History Month Reception,” February 26. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=109685.Google Scholar
Obama, Barack. 2015b. “Remarks Commemorating the 50th Anniversary of the Selma to Montgomery Marches for Voting Rights in Selma, Alabama,” March 7. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=109728.Google Scholar
Olson, Walter. 1991. The Litigation Explosion: What Happened When America Unleashed the Lawsuit. New York: Dutton.Google Scholar
Pew Research Center for the People & the Press. 2013. “Big Racial Divide over Zimmerman Verdict: Whites Say Too Much Focus on Race, Blacks Disagree.” July 22.Google Scholar
Pew Research Center for the People & the Press. 2014. “Sharp Racial Divisions in Reactions to Brown, Garner Decisions.” December 8.Google Scholar
Powe, Lucas Scot Jr. 2000. The Warren Court and American Politics. Cambridge, MA: Harvard University Press.Google Scholar
Posner, Richard A. 1996. The Federal Courts: Challenge and Reform. Cambridge, MA: Harvard University Press.CrossRefGoogle Scholar
President’s Task Force on 21st Century Policing. 2015. Interim Report of the President’s Task Force on 21st Century Policing. Washington, DC: Office of Community Oriented Policing Services.Google Scholar
Ramsey, Donovan X. 2015. “White America’s Silence on Police Brutality Is Consent.” Gawker Justice. April 10.Google Scholar
Rector, Kevin. 2015. “The 45-Minute Mystery of Freddie Gray’s Death.” Baltimore Sun, April 25.Google Scholar
Remnick, David. 2010. The Bridge: The Life and Rise of Barack Obama. New York: Vintage Books.Google Scholar
Resnik, Judith. 1997. “Changing Practices, Changing Rules: Judicial and Congressional Rulemaking on Civil Juries, Civil Justice, and Civil Judging.” Alabama Law Review 49: 133219.Google Scholar
Rosenberg, Gerald. 1991. The Hollow Hope: Can Courts Achieve Social Change? Chicago, IL: University of Chicago Press.Google Scholar
Rothfeld, Charles A. 1979. “Section 1983 Municipal Liability and the Doctrine of Respondeat Superior.” University of Chicago Law Review 46: 935–70.CrossRefGoogle Scholar
Rudovsky, David. 1989. “The Qualified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of Constitutional Rights.” University of Pennsylvania Law Review 138: 2381.CrossRefGoogle Scholar
Rudovsky, David. 1992. “Police Abuse: Can the Violence Be Contained?” Harvard Civil Rights-Civil Liberties Law Review 27: 465501.Google Scholar
Ruger, Todd. 2013. “No More Mr. Nice President: Obama’s D.C. Circuit Picks Signal a Tougher Approach.” National Law Journal, June 10.Google Scholar
Ruger, Todd. 2014. “Obama Criticized for Nominating Mostly Corporate Lawyers.” National Law Journal, February 6.Google Scholar
Rushin, Stephen. 2014. “Federal Enforcement of Police Reform.” Fordham Law Review 82: 3189–247.Google Scholar
Savage, Charles. 2006. “Civil Rights Hiring Shifted in Bush Era; Conservative Leanings Stressed.” Boston Globe, July 23.Google Scholar
Savage, Charles. 2009. “White House to Shift Efforts on Civil Rights.” New York Times, September 1.Google Scholar
Scheingold, Stuart. 2004. The Politics of Rights: Lawyers, Public Policy, and Political Change. 2d ed. Ann Arbor, MI: University of Michigan Press.CrossRefGoogle Scholar
Schlanger, Margo. 2003. “Inmate Litigation.” Harvard Law Review 116: 1555–706.CrossRefGoogle Scholar
Schlanger, Margo. 2006. “Civil Rights Injunctions over Time: A Case Study of Jail and Prison Court Orders.” New York University Law Review 81: 550630.Google Scholar
Schlanger, Margo. 2015. “Trends in Prisoner Litigation, as the PLRA Enters Adulthood.” University of California-Irvine Law Review 5: 153178.Google Scholar
Schmidt, Michael. 2015a. “A Call to Better Track Police Use of Guns, Holder Urges Better Data on Shootings Involving Police.” New York Times, January 15.Google Scholar
Schmidt, Michael. 2015b. “Comey Speaks Out on Race and Police.” New York Times, February 12.Google Scholar
Schmidt, Michael. 2015c. “Scant Data Frustrates Efforts to Assess Number of Shootings by Police.” New York Times, April 8.Google Scholar
Schmidt, Michael, and Apuzzo, Matt. 2015. “South Carolina Officer Is Charged with Murder of Walter Scott.” New York Times, April 7.Google Scholar
Schmidt, Michael, and Fernandez, Manny. 2014. “Justice Dept. Inquiry to Focus on Practices of Police in Ferguson.” New York Times, September 3.Google Scholar
Schuck, Peter. 1983. Suing Government: Citizen Remedies for Official Wrongs. New Haven, CT: Yale University Press.Google Scholar
Schwartz, Martin. 2009. “Supreme Court Sets Standards for Civil Rights Complaints. New York Law Journal, August 3.Google Scholar
Schwartz, Joanna C. 2010. “Myths and Mechanics of Deterrence: The Role of Lawsuits in Law Enforcement Decisionmaking.” University of California Los Angeles Law Review 57: 1023–94.Google Scholar
Schwartz, Joanna C. 2014. “Police Indemnification.” New York University Law Review 89: 8851004.Google Scholar
Shapo, Marshall S. 1965. “Constitutional Tort: Monroe v. Pape and the Frontiers Beyond.” Northwestern University Law Review 60: 277329.Google Scholar
Shapo, Marshall S. 2001. “Symposium, Re-Examining First Principles: Deterrence and Corrective Justice in Constitutional Torts: Afterword.” Georgia Law Review 35: 931–37.Google Scholar
Silveira, Matthew J. 2004. “An Unexpected Application of 42 U.S.C. § 14141: Using Investigative Findings for § 1983 Litigation.” University of California Los Angeles Law Review 52: 601–37.Google Scholar
Silverstein, Gordon. 2009. Law’s Allure: How Law Shapes, Constrains, Saves, and Kills Politics. Berkeley, CA: University of California Press.CrossRefGoogle Scholar
Skocpol, Theda, and Jacobs, Lawrence, eds. 2011. Reaching for a New Deal: Ambitious Governance, Economic Meltdown, and Polarized Politics in Obama's First Two Years. New York: Russell Sage Foundation.Google Scholar
Skocpol, Theda, and Jacobs, Lawrence 2012. “Accomplished and Embattled: Understanding Obama's Presidency.” Political Science Quarterly 127: 124.CrossRefGoogle Scholar
Smith, Rogers M., King, Desmond, and Klinkner, Philip A.. 2011 “Challenging History: Barack Obama & American Racial Politics.” Daedalus 140: 121–35.CrossRefGoogle Scholar
Southworth, Ann. 2008. Lawyers on the Rights: Professionalizing the Conservative Coalition. Chicago, IL: University of Chicago Press.CrossRefGoogle Scholar
Staszak, Sarah. 2010. “Institutions, Rulemaking, and the Politics of Judicial Retrenchment.” Studies in American Political Development 24: 168–89.CrossRefGoogle Scholar
Staszak, Sarah. 2015. No Day in Court: Access to Justice and the Politics of Judicial Retrenchment. New York: Oxford University Press.CrossRefGoogle Scholar
Sugrue, Thomas. 2010. Not Even Past: Barack Obama and the Burdens of Race. Princeton, NJ: Princeton University Press.CrossRefGoogle Scholar
Tebo, Margaret. 2003. “Fee-Shifting Fallout.” ABA Journal, July.Google Scholar
Teles, Steven. 2008. The Rise of the Conservative Legal Movement: The Battle for the Control of the Law. Princeton, NJ: Princeton University Press.CrossRefGoogle Scholar
Thompson, John. 2011. “The Prosecution Rests, But I Can’t.” New York Times, April 10.Google Scholar
Toobin, Jeffrey. 2014.“Holder v. Roberts: The Attorney General Makes Voting Rights the Test Case of His Tenure.” New Yorker, February 17 and 24.Google Scholar
United States Department of Justice, Civil Rights Division. 2015a. Department of Justice Report Regarding the Criminal Investigation into the Shooting Death of Michael Brown by Ferguson, Missouri Police Officer Darren Wilson. March 4.Google Scholar
United States Department of Justice, Civil Rights Division. 2015b. Investigation of the Ferguson Police Department. March 4.Google Scholar
Vega, Tanzina, and Eligon, John. 2014. “Deep Tensions Rise to Surface after Ferguson Shooting.” New York Times, August 16.Google Scholar
Vives, Ruben. 2014. “Ezell Ford’s Parents File a Wrongful Death Lawsuit against LAPD.” Los Angeles Times, September 17.Google Scholar
Vives, Ruben, Winton, Richard and Mather, Kate. “After LAPD Kills Mentally Ill Man, Activists Demand Answers.” Los Angeles Times, August 14.Google Scholar
Voorhees, Josh. 2014. “Can Anyone Fix the Ferguson Police Department?” Slate. August 18.Google Scholar
Walker, Samuel E. and Archbold, Carol A.. 2014. The New World of Police Accountability. 2d ed. Los Angeles, CA: Sage Publications.Google Scholar
Ward, Artemus and Pickerill, Mitchell. 2013. “Minimalism Is Alive and Well on the Roberts Court.” National Law Journal, July 3.Google Scholar
Weinberg, Louise. 1977. “The New Judicial Federalism.” Stanford Law Review 29: 1191–244.CrossRefGoogle Scholar
Weiser, Benjamin. 2014. “New York City Comptroller Seeks to Settle Claim by Eric Garner’s Family.” New York Times, December 16.Google Scholar
Wells, Georgia. 2014. “Ferguson to New York, Social Media Is the Organizers Biggest Megaphone.” Wall Street Journal, December 4.Google Scholar
White, House. 2014. President Obama’s Judicial Nominees: Creating a Judicial Pool that Resembles the Nation It Serves. May 5. http://www.whitehouse.gov/share/judicial-nominations Google Scholar
Wolf, Richard. 2012. “Obama Determined to Fill Federal Judgeships.” USA Today, November 28.Google Scholar
Yackle, Larry. 1994. Reclaiming the Federal Courts. Cambridge, MA: Harvard University Press.Google Scholar