Shielded from Justice: Police Brutality and Accountability in the United States
In deflecting criticisms regarding the government's failure to fulfill its obligation to ensure the rights of individuals within the United States are protected, officials often point to civil remedies as the most effective avenue for redress. Although no substitute for prosecutions of officers who commit crimes, civil cases are easier to pursue as an evidentiary matter because they use a lower standard of proof than is required in criminal cases: a preponderance of the evidence, rather than beyond a reasonable doubt. Some reforms in police practices have stemmed from costly lawsuits or the threat of lawsuits; more typically, however, civil remedies have been limited to providing monetary relief to individual victims. And, unlike criminal cases and disciplinary actions against officers, which are pursued by the government, most civil cases must be shouldered by the plaintiff.
Under 42 U.S. Code, section 1983, the relevant federal civil statute, individuals may file lawsuits against the offending officer, department or jurisdiction.2 It states:
Any person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other personwithin the jurisdiction thereof to the deprivation of any rights, privileges, or immunities security 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....3
Section 1983 actions are intended to fulfill at least two basic purposes in the police abuse context. First, such actions are designed to compensate victims of police abuse, usually through an award of compensatory damages. Second, such actions are intended to make police officers and departments accountable to constitutionally required standards of conduct.4
Although the statute stems from Reconstruction-era civil rights laws, it was only commonly utilized by police abuse victims following a landmark 1978 case, Monell v. Dept. of Social Services of the City of New York, which assigned liability to local governments for constitutional violations by their employees.5 Monell thus opened the "deep pockets" of local government.
Civil lawsuits are limited in important respects that undermine their effectiveness in providing a remedy for past violations and in providing protection against future police abuse. Under Section 1983 a victim of police abuse may not win a damage award following a judgment against a police department unless it can be shown that the injury was caused by a municipal "policy" or "custom."6 In 1989, the Supreme Court imposed a separate "state of mind requirement," so that plaintiffs must prove deliberate indifference to abuse on the part of the municipality in cases involving inadequate training.7 These requirements create difficult hurdles for Section 1983 plaintiffs to overcome.
Furthermore, individual police officers have immunity from Section 1983 liability unless it can be shown that their conduct violated "clearly established"statutory or constitutional norms of which a reasonable person would have known.8 In practice, qualified immunity benefits officers accused of using excessive force because while juries are supposed to focus on whether the officer's conduct was objectively reasonable, they may focus instead on what the officer reasonably believed about the facts justifying the force used. As a result, they may find in favor of the officer if the conduct is objectively unreasonable but understandable.9
The effectiveness of Section 1983 is further undermined by the sharp limits on the use of civil rights actions to restrain future constitutional violations, especially in the area of police abuse. The Lyons v. City of Los Angeles case best illustrates this problem.10 In Lyons, the Supreme Court overturned an injunction issued by a lower federal court prohibiting the use of chokeholds by the LAPD. The use of chokeholds was extremely controversial in large part because more than a dozen people died as a result of their use in Los Angeles, most of them African-Americans, between 1975 and 1980.11 The Supreme Court reasoned that Lyons had no "standing" to bring a claim for relief against future uses of the chokehold because he could not allege that he was likely to be stopped by the LAPD again and unjustifiably subjected to a chokehold. Because it would always be difficult for almost any person claiming relief from future police abuse to make such a showing, the Lyons case has been an insuperable barrier to many suits seeking to challenge ongoing police practices. The damage caused by this ruling was described by former Justice Thurgood Marshall in his Lyons dissent:
Under the view expressed by the majority today, if the police adopt a "shoot to kill" policy or a policy of shooting one out of every ten suspects, the federal courts will be powerless to enjoin its continuation....The federaljudicial power is now limited to levying a [money damage] toll for such a systematic constitutional violation.12
In an April 1997 decision in the case of Commissioners of Bryan County v. Brown, the Supreme Court ruled that municipalities could not be held liable for the hiring of law enforcement officers with criminal histories indicating violent behavior who then went on to use excessive force.13 The court ruled that a victim must show that a city or county consciously disregarded the risk of hiring a person and that injuries were a "plainly obvious consequence" of the hiring decision. The majority opinion contended that it must be shown that "this officer was highly likely to inflict the particular injury suffered by the plaintiff."14 By so doing, the court limited an individual's ability to sue successfully in cases in which screening and hiring procedures and decisions are faulty, and thus whittled away the most frequently used remedy for police abuse in the United States.15 This is an important, and unfortunate, development, since police abuse experts point to massive hiring periods - and poor background investigations, screening, and training that often accompany such hiring surges - as a key contributor to the recruitment of individuals who become abusive as officers.
The Violent Crime Control and Law Enforcement Act of 1994 included a new statute under which the Department of Justice may enforce the constitutional rights of individuals abused by police officers. Under the new statute, the Justice Department may sue for declaratory and equitable relief if any governmental authority or person acting on behalf of any governmental authority engages in "a pattern or practice of conduct by law enforcement officers...that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States."16
Police abuse experts had long recommended giving federal authorities power to bring civil actions against police departments engaging in a pattern or practice of misconduct. In April 1997, the Justice Department, relying on this new authority, reached a consent decree to force reforms in Pittsburgh, Pennsylvania's police force and in August 1997 reached a consent decree with the Steubenville, Ohio police force. The department has disclosed that it is closely monitoring at least four other police departments - in Los Angeles, New Orleans, New York, and Philadelphia - to decide whether to proceed with formal injunctive actions to end abuses committed or tolerated by these police departments.
2 There are also state-level civil statutes that plaintiffs may use to bring abuse lawsuits, but the federal law, Section 1983, is used more frequently.
4 Hoffman, "The Feds, lies, and videotape," Southern California Law Review.
5 Monell v. New York City Department of Social Services, 436 U.S. 658 (1978).
7 See report by law firm Piper and Marbury, June 29, 1995, p. 19, regarding the civilian complaint review board in Washington, D.C. citing City of Canton v. Harris, 489 U.S. 378, 389 (1989). To be assigned liability, the municipality's policy or custom must directly cause or constitute a "moving force" behind the constitutional deprivation.
8 See Hoffman, "The feds, lies and videotape," Southern California Law Review.
9 Mary Cheh, "Are lawsuits an answer to police brutality," And Justice for All, (Washington, D.C.: Police Executive Research Forum, 1995), pp. 233-259.
10 461 U.S. 95 (1983). See also Rizzo v Goode, 423 U.S. 362 (1976)(overturning an injunction issued against the Philadelphia police department).
11 Of the fourteen city police departments examined by Human Rights Watch, only four (San Francisco, District of Columbia, Los Angeles, and Minneapolis) still allow chokeholds, according to 1993 Law Enforcement Management and Administrative Statistics, 1993, Bureau of Justice Statistics, Washington, D.C., pp. 169-180.
13 Board of the County Commissioners of Bryan County, Oklahoma v. Brown, et al., U.S. Supreme Court, No. 95-1100, April 28, 1997.
15 Municipalities are still held liable for insufficient training and flawed disciplinary policies when these are found responsible for the use of excessive force by individual officers.
© June 1998
Human Rights Watch