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New Federalism and Civil Rights Enforcement, 2021

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Copyright 2021 by Alexander Reinert, Joanna C. Schwartz & James E. Pfander

Printed in U.S.A.
Vol. 116, No. 3

NEW FEDERALISM AND CIVIL RIGHTS
ENFORCEMENT
Alexander Reinert, Joanna C. Schwartz & James E. Pfander
ABSTRACT—Calls for change to the infrastructure of civil rights
enforcement have grown more insistent in the past several years, attracting
support from a wide range of advocates, scholars, and federal, state, and local
officials. Much of the attention has focused on federal-level reforms,
including proposals to overrule Supreme Court doctrines that stop many civil
rights lawsuits in their tracks. But state and local officials share responsibility
for the enforcement of civil rights and have underappreciated powers to
adopt reforms of their own. This Article evaluates a range of state and local
interventions, including the adoption of state law causes of action for
constitutional violations, improved local budgeting and indemnification
practices, and new litigation strategies that encourage government attorneys
charged with defending civil rights litigation to take better account of the
significant public interest in enforcing constitutional norms. Rather than
await federal reforms that may never come, the many state and local officials
who have advocated for change can promptly translate their professed
commitments into law and policy.
AUTHORS—Max Freund Professor of Litigation & Advocacy, Benjamin N.
Cardozo School of Law (Reinert); Professor of Law, UCLA School of Law
(Schwartz); Owen L. Coon Professor of Law, Northwestern Pritzker School
of Law (Pfander). We thank Jessica Bulman-Pozen, Barry Friedman,
Myriam Gilles, Tara Grove, Robert Pushaw, Anthony Sebok, Ellen
Yaroshefsky, and Benjamin Zipursky for comments on early drafts. We are
also grateful to Sadie Casamenti, Leah Regan-Smith, and Monica Siwiec for
able research assistance and to Sarah Chanski, Elizabeth Jeffers, Oren
Kriegel, Emma Mayberry, Ivan Parfenoff, Eliza Quander, and the editors of
the Northwestern University Law Review for excellent editorial assistance.

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NORTHWESTERN UNIVERSITY LAW REVIEW
INTRODUCTION ............................................................................................................ 738
I.

EVALUATING THE FEDERAL CHALLENGES TO CIVIL RIGHTS ENFORCEMENT ......... 750
A. Qualified Immunity ..................................................................................... 752
B. Municipal Liability ..................................................................................... 754
C. Other Barriers ............................................................................................ 755

II.

STATE AND LOCAL ALTERNATIVES TO FEDERAL CIVIL RIGHTS ENFORCEMENT
UNDER SECTION 1983 .......................................................................................... 757
A. State Statutory Frameworks to Vindicate Claims of Government
Wrongdoing ................................................................................................ 758
B. The Budgetary Institutions of Civil Rights Enforcement ............................. 763
C. The Litigation Practices of Local Law Departments .................................. 766

III. A PROPOSAL FOR ENHANCED STATE AND LOCAL CIVIL RIGHTS ENFORCEMENT ... 768
A. A State Law Analogue to Section 1983 ....................................................... 769
B. Budgeting, Accountability, and Risk Management ..................................... 775
C. Changes to Granular-Level Representation ............................................... 780
IV. OBJECTIONS AND RESPONSES ............................................................................... 782
A. The Fear of Increased Litigation and Liability ........................................... 783
B. Objections to Proposed Budgeting and Risk-Management Changes .......... 787
C. The Professional Responsibility Objections to Forgoing Valid Defenses
in Section 1983 Litigation ........................................................................... 788
D. The State Role in Fostering Constitutional Rights Enforcement ................. 792
V.

ASSESSING THE BENEFITS OF STATE AND LOCAL CONSTITUTIONAL
REMEDIATION ...................................................................................................... 795
A. The Importance of Concrete Remedies ....................................................... 796
B. The Value of an Improved Signal................................................................ 798
C. The Value of Taking Action ........................................................................ 801
D. Experimentation and Evidence ................................................................... 803
E. Feasibility ................................................................................................... 804

CONCLUSION ............................................................................................................... 805
APPENDIX A: SURVEY OF STATE LAW REGARDING CAUSES OF ACTION FOR
CONSTITUTIONAL VIOLATIONS ............................................................................. 806
APPENDIX B: PROPOSED MODEL STATE STATUTE CREATING A CAUSE OF ACTION
FOR CONSTITUTIONAL VIOLATIONS ...................................................................... 814

INTRODUCTION
If the moment to rethink civil rights enforcement has arrived, it comes
too late for Michael Brown, Philando Castile, Stephon Clark, George Floyd,
Eric Garner, Tamir Rice, Walter Scott, Alton Sterling, Breonna Taylor, and

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New Federalism and Civil Rights Enforcement

many others.1 Understandably, much attention has focused on reforms at the
federal level to the many doctrines that now restrict the effectiveness of suits
brought against state and local officials under 42 U.S.C. § 1983.2 We have
joined scholars from around the country in supporting such a national reform
agenda, urging changes to the doctrine of qualified immunity 3 and other
improvements in the effectiveness of constitutional remediation.4 We share
1 Of the many heartbreaking accounts of the senseless death of George Floyd in May 2020, we found
news of the indifference of the Civil Rights Division under Attorney General William Barr unfathomable
and yet entirely predictable. See Christy Lopez, The Civil Rights Division: The Crown Jewel of the Justice
Department, 130 YALE L.J.F. 462, 468 (2021). The most recent wave of high-profile police killings began
with Eric Garner, Michael Brown, and Tamir Rice in 2014. See George Floyd: Timeline of Black Deaths
and Protests, BBC NEWS (Apr. 22, 2021), https://www.bbc.com/news/world-us-canada-52905408
[https://perma.cc/E8GD-YMM4]. But the history of police abuse and the need for more robust oversight
and accountability is as old as policing itself. See, e.g., Laurie L. Levenson, Police Corruption and New
Models for Reform, 35 SUFFOLK U. L. REV. 1, 7–10 (2001) (summarizing the history of police brutality).
2 Section 1983 provides that

[e]very person who, under color of [state law] . . . , 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.
42 U.S.C. § 1983. Since 1961 in Monroe v. Pape, 365 U.S. 167 (1961), this Reconstruction-era statute
has served as the primary vehicle for the vindication of federal constitutional rights through litigation
directed at state and local officials. For a discussion of the history of Section 1983 and its role in federal
civil rights enforcement authored soon after the Supreme Court’s 1961 decision in Monroe, see, for
example, Marshall S. Shapo, Constitutional Tort: Monroe v. Pape, and the Frontiers Beyond, 60 NW. U.
L. REV. 277, 278 (1965) (tracing the “prior nine decades of legislative and judicial history of [the] statute”
and the “explosion of actions in the lower federal courts” since Monroe). Federal actors cannot be sued
under Section 1983; instead, the Supreme Court recognized a limited right to sue federal officials for
constitutional violations in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388, 389 (1971). For a discussion of the Court’s subsequent limitation of the right to sue under Bivens,
see James E. Pfander, Alexander A. Reinert & Joanna C. Schwartz, The Myth of Personal Liability: Who
Pays When Bivens Claims Succeed, 72 STAN. L. REV. 561, 569–78 (2020) [hereinafter Pfander et al., The
Myth of Personal Liability]; Joanna C. Schwartz, Alexander Reinert & James E. Pfander, Going Rogue:
The Supreme Court’s Newfound Hostility to Policy-Based Bivens Claims, 96 NOTRE DAME L. REV. 1835,
1836–39 (2021).
3 Qualified immunity is a defense that shields police officers and other government officials from
damages liability in Section 1983 suits unless they violated “clearly established law”—a standard that the
Supreme Court has indicated can only be met with a prior court decision from the Supreme Court or a
court of appeals holding unconstitutional nearly identical facts. See, e.g., Kisela v. Hughes, 138 S. Ct.
1148, 1153 (2018) (per curiam) (“[P]olice officers are entitled to qualified immunity unless existing
precedent squarely governs the specific facts at issue.” (internal quotation marks omitted)). For further
description of qualified immunity, see infra Section I.A.
4 Since May 2020, the authors have consulted with policymakers in the U.S. House of
Representatives; the U.S. Senate; the states of California, Illinois, Louisiana, Mississippi, New Mexico,
Texas, and Washington; and New York City about how to improve civil rights litigation. We have drawn
reform proposals from this consultative work and from our scholarly work in the field. See, e.g., Joanna
C. Schwartz, After Qualified Immunity, 120 COLUM. L. REV. 309, 315–17 (2020) [hereinafter Schwartz,
After Qualified Immunity] (describing predictions about constitutional litigation if qualified immunity

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the widespread view that such changes can foster a healthier ecosystem of
civil rights enforcement that can better ensure victim compensation, deter
unconstitutional conduct, and encourage forward-looking changes in
government practices. 5 Yet there are substantial barriers to transforming
federal law. The Supreme Court has shown little inclination to simplify the
byzantine world of civil rights enforcement it has created, and Congress
remains closely divided and, thus far, unable to enact a comprehensive
reform agenda.6
Rather than await national-level reforms that may never become reality,
many policymakers have begun to chart a reform agenda at the state and local
levels. 7 Colorado has created a state law cause of action against police
were eliminated); Joanna C. Schwartz, How Governments Pay: Lawsuits, Budgets, and Police Reform,
63 UCLA L. REV. 1144, 1147–50, 1165 (2016) [hereinafter Schwartz, How Governments Pay] (reporting
results from a nationwide study on how jurisdictions budget for and pay settlements and judgments
against law enforcement); Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. REV. 885, 891
(2014) [hereinafter Schwartz, Police Indemnification] (reporting that police officers almost never
contribute anything to settlements and judgments entered against them and proposing reforms to improve
lawsuits’ deterrence signals); Alexander A. Reinert, Does Qualified Immunity Matter?, 8 U. ST. THOMAS
L.J. 477, 488–91 (2011) [hereinafter Reinert, Does Qualified Immunity Matter?] (examining the impact
of qualified immunity on plaintiffs’ attorneys’ case-selection decisions in Bivens actions); Alex Reinert,
Procedural Barriers to Civil Rights Litigation and the Illusory Promise of Equity, 78 UMKC L. REV.
931, 936 (2010) [hereinafter Reinert, Procedural Barriers to Civil Rights Litigation] (arguing that the
Supreme Court’s civil rights jurisprudence prioritizes equitable over damages remedies, while
simultaneously increasing barriers to equitable relief); Alexander A. Reinert, Qualified Immunity at Trial,
93 NOTRE DAME L. REV. 2065, 2068 (2018) [hereinafter Reinert, Qualified Immunity at Trial] (presenting
data on how qualified immunity functions at trial); James E. Pfander, Resolving the Qualified Immunity
Dilemma: Constitutional Tort Claims for Nominal Damages, 111 COLUM. L. REV. 1601, 1606–11 (2011)
[hereinafter Pfander, Resolving the Qualified Immunity Dilemma] (suggesting that constitutional tort
claimants should be permitted to avoid a qualified immunity defense by pursuing nominal damages
alone); Pfander et al., The Myth of Personal Liability, supra note 2, at 596 (suggesting that the hostility
to Bivens rests on a perceived threat of personal liability that is “more theoretical than real”).
5 For a description and discussion of civil rights ecosystems, see generally Joanna C. Schwartz, Civil
Rights Ecosystems, 118 MICH. L. REV. 1539, 1547–63 (2020) [hereinafter Schwartz, Civil Rights
Ecosystems] (describing civil rights ecosystems as a collection of people, legal rules and remedies, and
informal practices that determine the frequency with which claims against governments are brought, the
frequency with which those claims are successful, and the magnitude of their success).
6
For an account of the Supreme Court’s refusal to reconsider qualified immunity in June 2020, see
Robert Barnes & Ann E. Marimow, Supreme Court Refuses to Reconsider Immunity that Shields Police
Accused of Brutality, WASH. POST (June 15, 2020, 10:58 AM), https://www.washingtonpost.com/politics/
courts_law/supreme-court-refuses-to-reconsider-immunity-that-shields-police-accused-of-brutality/
2020/06/15/1cfc444c-ae7f-11ea-8f56-63f38c990077_story.html [https://perma.cc/RZ9V-78LW]. For a
description of gridlock in Congress over policing reforms, see Nicholas Fandos & Catie Edmondson,
Policing Reform Negotiations Sputter in Congress Amid Partisan Bickering, N.Y. TIMES (June 10, 2021),
https://www.nytimes.com/2021/06/10/us/politics/policing-reform-congress.html
[https://perma.cc/
KAH2-UG65].
7 For a useful collection of state practices and statutes in the civil and criminal jurisdiction arenas,
see NAT’L CONF. OF STATE LEGISLATURES, LAW ENFORCEMENT STATUTORY DATABASE, https://www.
ncsl.org/research/civil-and-criminal-justice/law-enforcement-statutory-database.aspx [https://perma.cc/
F3H2-DCRB].

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officers for violations of the state constitution, providing that officers do not
enjoy a qualified immunity from such claims, and adjusting indemnification
rules in ways intended to improve the deterrent effect of litigation.8 A similar
bill has been signed into law in New Mexico.9 Efforts have been undertaken
in several other states as well, including California, Connecticut, Illinois,
Maine, Massachusetts, New York, Rhode Island, Washington, Wyoming,
and Virginia. 10 State law enforcement officials have brought structural-

8

See COLO. REV. STAT. § 13-21-131 (2021).
See New Mexico Civil Rights Act, H.B. 4, 55th Leg., 2021 Reg. Sess. (N.M. 2021), https://www.
nmlegis.gov/Sessions/21%20Regular/Amendments_In_Context/HB0004.pdf [https://perma.cc/4PELK9VP]. In testimony before the New Mexico Civil Rights Commission, we offered recommendations for
reform, many of which were adopted in the commission’s report. See N.M. CIV. RTS. COMM’N, REPORT
9 (Nov. 20, 2020), https://www.generalservices.state.nm.us/uploads/files/RMD/CRC/New%20
Mexico%20Civil%20Rights%20Commission%20Report.pdf [https://perma.cc/UHG8-2EJP].
10 For a sample of recent efforts to enact or expand state law causes of action for violations of
constitutional rights without a qualified immunity defense, see Amy Russo, Lawmakers Introduce
Policing Bill Banning Chokeholds, Requiring Body Cameras, PROVIDENCE J. (Mar. 30, 2021, 4:09 PM),
https://www.providencejournal.com/story/news/2021/03/30/lawmakers-introduce-police-reform-billchokeholds-body-cameras/7061233002/ [https://perma.cc/7A54-F6LL] (describing a bill introduced in
Rhode Island); Kendall Polidori, State Legislators Renew Push for Qualified Immunity, CHI. REP. (Apr.
23, 2021), https://www.chicagoreporter.com/state-legislators-renew-push-for-qualified-immunity/#:~:
text=Qualified%20immunity%20is%20a%20federal,federal%20constitutional%20rights%20were%20vi
olated [https://perma.cc/JN4D-6G2V] (describing a bill introduced in Illinois); Emma Tucker, States
Tackling ‘Qualified Immunity’ for Police as Congress Squabbles Over the Issue, CNN (Apr. 23, 2021,
7:45 AM), https://www.cnn.com/2021/04/23/politics/qualified-immunity-police-reform/index.html
[https://perma.cc/4F62-9XWK] (describing bills passed in Connecticut and Massachusetts); Nick Cahill,
Bill to Decertify Bad Cops and Limit Immunity Advances in California Senate, COURTHOUSE NEWS SERV.
(Apr. 27, 2021), https://www.courthousenews.com/bill-to-decertify-bad-cops-and-limit-immunityadvances-in-california-senate-committee/ [https://perma.cc/ND9W-DYKM] (describing ongoing efforts
to pass legislation in California); Nick Reisman, Calls to End Qualified Immunity Grow at New York
State Capitol, SPECTRUM NEWS 1 (June 2, 2021, 5:45 PM), https://spectrumlocalnews.com/
nys/rochester/ny-state-of-politics/2021/06/02/calls-for-qualified-immunity-grow-at-state-capitol [https://
perma.cc/3LM8-EULW] (describing efforts to pass bill in New York State); Erin Keller, Don Carrigan
& Zach Blanchard, Legislative Committee Strikes Down Bill to End Qualified Immunity for Police
Officers, NEWS CTR. ME. (May 28, 2021, 6:08 AM), https://www.newscentermaine.com/article/
news/politics/maine-politics/maine-lawmakers-strike-down-bill-to-end-qualified-immunity-for-policeofficers/97-faa982a6-249e-41ae-beb1-0ac2f56e8110 [https://perma.cc/LQJ3-J7EK] (describing failure
to advance Maine bill); Melissa Santos, Police Accountability Agenda Loses Some Teeth in WA
Legislature, CROSSCUT (Mar. 22, 2021), https://crosscut.com/politics/2021/03/police-accountabilityagenda-loses-some-teeth-wa-legislature [https://perma.cc/2R8N-DNUR] (describing struggles to pass
legislation in Washington State); Ellen Gerst, Effort to Prevent Federal Restrictions on Gun Rights in
Wyoming Advances out of Senate, CASPER STAR TRIB. (Apr. 29, 2021), https://trib.com/news/state-andregional/effort-to-prevent-federal-restrictions-on-gun-rights-in-wyoming-advances-out-of-senate/article
_edc5f4b5-c336-5514-81b9-4c90e1a993e7.html [https://perma.cc/6E9P-SFC9] (describing a proposed
Wyoming bill); Jackie DeFusco, Virginia House Kills Bill to End Qualified Immunity for Police Officers,
Scaled-Back Senate Proposal Lives On, ABC8NEWS (Jan. 29, 2021, 7:33 PM), https://www.wric.
com/news/virginia-house-kills-bill-to-end-qualified-immunity-for-police-officers-scaled-back-senateproposal-lives-on/ [https://perma.cc/RXR6-GFBV] (describing failed efforts in Virginia).
9

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reform litigation seeking to modify police practices,11 and local government
officials, too, have called for reforms to better ensure justice for victims of
police violence.12 Indeed, in 2021, New York City became the first city to
enact legislation that creates a cause of action for excessive force and
unlawful searches and seizures and bars assertion of a qualified immunity
defense for these claims.13
In offering this account and analysis of reform measures at the state and
local levels, we have two goals. First, by drawing attention to the possibility
of reform outside Washington, D.C., we hope to encourage policymakers to
take responsibility for the quality of their own state and local civil rights
ecosystems. In pursuit of this goal, we describe a rash of missed
opportunities at the state and local levels to advance constitutional
protections. Although state and local governments have been sources of
rights expansion and innovation in multiple areas, 14 we believe that, too
11

See, e.g., Complaint for Declaratory and Injunctive Relief, People v. City of New York, No. 21cv-322 (S.D.N.Y. Jan. 14, 2021) (asserting claim regarding pervasive use of excessive force and false
arrests by NYPD); Complaint, State v. City of Chicago, No. 17-cv-6260 (N.D. Ill. Aug. 29, 2017)
(bringing claim to reform the Chicago Police Department).
12 See, e.g., Kristi Gross, Stockton Mayor Tubbs Addresses Police Reform in Juneteenth Livestream,
FOX40 (June 19, 2020, 5:47 P.M.), https://fox40.com/news/local-news/stockton-mayor-tubbs-addressespolice-reform-in-juneteenth-livestream/ [https://perma.cc/R8UC-YDYP] (reporting Stockton Mayor
Michael Tubbs’s support for ending qualified immunity); Ken Haddad, Michigan Gov. Whitmer Supports
‘Spirit’ of ‘Defunding Police,’ Open to Ending Qualified Immunity, CLICKONDETROIT (June 9, 2020,
8:24 PM), https://www.clickondetroit.com/news/local/2020/06/09/michigan-gov-whitmer-supportsspirit-of-defunding-police-open-to-ending-qualified-immunity/
[https://perma.cc/U5FZ-NA8X]
(“[Qualified immunity] is something we need to look at. This blanket immunity feeds into the notion that
there aren’t consequences.”); Alex Morris, An Interview from Birmingham City Hall: Mayor Randall
Woodfin on Toppling Racist Monuments, ROLLING STONE (July 9, 2020, 2:52 PM), https://www.
rollingstone.com/politics/politics-features/birmingham-alabama-mayor-randall-woodfin-confederatestatues-racism-1026205/ [https://perma.cc/Q4FH-7DR9] (“It’s not enough to just tear down a [statue].
That’s symbolism. It’s not enough to just paint ‘Black Lives Matter.’ That’s symbolism. You want to
fight systemic racism . . . .”); Press Release, Office of Governor Ned Lamont, Governor Lamont Signs
Policing Reform Legislation (July 31, 2020), https://portal.ct.gov/Office-of-the-Governor/News/PressReleases/2020/07-2020/Governor-Lamont-Signs-Policing-Reform-Legislation [https://perma.cc/NX4QXUPP] (“[Qualified immunity reform and other reforms] are focused on bringing real change to end the
systemic discrimination that exists in our criminal justice and policing systems that have impacted
minority communities for far too long . . . . Our nation and our state has been having a conversation on
this topic for decades, and these reforms are long overdue.”); CITY OF NEWARK, MAYOR RAS J.
BARAKA’S STATEMENT ON BREONNA TAYLOR (Sept. 24, 2020), https://www.newarknj.gov/news/mayorras-j-barakas-statement-on-breonna-taylor [https://perma.cc/63FG-K4KD] (“We need real police reform
that includes the abolishment of qualified immunity for once and for all.”).
13
See N.Y.C. ADMIN. CODE §§ 8-802–803 (2021).
14 See, e.g., Megan Haberle & Philip Tegeler, Coordinated Action on School and Housing
Integration: The Role of State Government, 53 U. RICH. L. REV. 949, 951–52 (2019) (summarizing
literature on state-level intervention to further school and housing integration); Angela P. Harris & Aysha
Pamukcu, The Civil Rights of Health: A New Approach to Challenging Structural Inequality, 67 UCLA

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New Federalism and Civil Rights Enforcement

often, state and local officials regard constitutional enforcement as an alien
force, imposed on their governments by the heavy hand of the federal
government.15 That conception of constitutional law as an outside force to be
resisted may help to explain the surprising results of our survey of state laws
as reported in Appendix A. Most states have taken no measures to secure the
enforcement of constitutional rights through constitutional tort litigation.16
True, many states allow the litigation of garden-variety tort claims, but only
a small group authorizes constitutional litigation, either by statute or by
judicial decision.17 And even these state constitutional enforcement regimes
have been weighed down by the same doctrines of immunity that defeat
claims brought under Section 1983.18 Scholars rightly criticize these barriers
to effective enforcement at the national level. 19 We extend that critique,
arguing that state and local governments can do more to ensure an effective
system of civil rights enforcement at the local level.
Our description of state and local practices reveals another flaw. Too
often, local practices in the midst and aftermath of constitutional tort
litigation fail to send proper signals to those responsible for constitutional
compliance.20 To be sure, some constitutional violations go without remedy
altogether because of qualified immunity—which insulates officers from
L. REV. 758, 822–23 (2020) (discussing city- and state-level innovation in “civil rights of health”);
Olatunde C.A. Johnson, The Local Turn; Innovation and Diffusion in Civil Rights Law, 79 LAW &
CONTEMP. PROBS. 115, 118–30 (2016) (describing innovative state and local legislation to broaden
antidiscrimination protections and further inclusion); Richard C. Schragger, Cities as Constitutional
Actors: The Case of Same-Sex Marriage, 21 J.L. & POL. 147, 148–50 (2005) (providing examples of
municipal action to further recognition of same-sex marriage); Laurence H. Tribe & Joshua Matz, An
Ephemeral Moment: Minimalism, Equality, and Federalism in the Struggle for Same-Sex Marriage
Rights, 37 N.Y.U. REV. L. & SOC. CHANGE 199, 207 (2013) (“State legislatures, executives, and courts
may be more receptive to progressive arguments than their federal counterparts . . . .”).
15 For example, Department of Justice initiatives to address systemic problems in local police
departments often encounter at least an initial wave of hostility. See Stephen Rushin, Structural Reform
Litigation in American Police Departments, 99 MINN. L. REV. 1343, 1416–18 (2015) (describing local
opposition to some structural-reform initiatives and emphasizing the importance of local cooperation to
long-term success).
16 See infra Section II.A (describing these findings).
17 For further discussion about the relative merits of state remediation through tort and constitutional
claims and why we prefer the latter, see infra Section IV.D.
18 For a description of Section 1983 and its history, see supra note 2.
19 For our criticisms of qualified immunity doctrine and our proposed adjustments to the doctrine,
see generally Schwartz, After Qualified Immunity, supra note 4; Reinert, Does Qualified Immunity
Matter?, supra note 4; Reinert, Qualified Immunity at Trial, supra note 4; and Pfander, Resolving the
Qualified Immunity Dilemma, supra note 4. For broader concerns about federal laws governing civil
rights enforcement, see, for example, Reinert, Procedural Barriers to Civil Rights Litigation, supra note
4, at 943–46; Karen M. Blum, Section 1983 Litigation: The Maze, the Mud, and the Madness, 23 WM. &
MARY BILL RTS. J. 913, 913–14 (2015); and Pamela S. Karlan, The Paradoxical Structure of
Constitutional Litigation, 75 FORDHAM L. REV. 1913, 1913–15 (2007).
20 See infra Section II.B (describing these findings).

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liability even when they have violated the Constitution—and other doctrines
that limit consequences for unlawful conduct by supervisors and cities. But
even when constitutional litigation is successful, we find that state and local
governments do a poor job of processing the information that these suits
should convey to local policymakers. Partly, these flaws stem from the way
local governments budget and pay for the judgments that emerge from
constitutional tort litigation. Viewing the judgments as an inescapable
financial burden, local governments fail to think creatively about how to
lessen that burden or how to assign liability to the officers and agencies that
bear responsibility for the unconstitutional practices in question. Colorado’s
reforms illustrate the possibility of constructing a regime that assigns
agencies and officers a measure of financial responsibility for the harms they
inflict. 21 Such risk-management and budgeting schemes can help better
achieve the deterrence goals that all agree should play a central role in civil
rights enforcement.
We also identify some local litigation practices as inconsistent with the
goal of effective civil rights enforcement. 22 Put simply, state and local
governments have a responsibility, when caught up in the litigation of
constitutional claims, to ensure just results. By invoking all the defensive
measures that federal law makes available, state and local government
attorneys often work to defeat well-grounded claims and impose burdens and
costs on deserving civil rights plaintiffs—sometimes expending significant
governmental resources to defend against these meritorious claims.23 We do
not advocate for unilateral disarmament: city attorneys need not capitulate to
every demand for relief issued by plaintiffs under the auspices of Section
1983. But just as district attorneys labeling themselves “progressive
prosecutors” have committed to using their power and discretion to pursue
justice in various forms,24 local governments can contribute to a culture of

See infra note 149 and accompanying text (describing Colorado’s statutory requirement that
officers contribute to settlements and judgments when found to have acted in bad faith).
22 See infra Section II.C (describing these findings).
23 See, e.g., Dan Hinkel, A Hidden Cost of Chicago Police Misconduct: $213 Million to Private
Lawyers Since 2004, CHI. TRIB. (Sept. 12, 2019), https://www.chicagotribune.com/investigations/ct-metchicago-legal-spending-20190912-sky5euto4jbcdenjfi4datpnki-story.html
[https://perma.cc/2ZSTYR7H] (reporting that the City of Chicago has “rung up especially large bills defending officers with
long records of misconduct” and litigating cases that “the city could have settled for less before spending
heavily on attorneys”).
24 For discussion on progressive prosecutors, see generally Benjamin Levin, Imagining the
Progressive Prosecutor, 105 MINN. L. REV. 1415, 1418–19 (2021) (describing four types of progressive
prosecutors and the ways in which their differences reveal different understandings of what is wrong with
the criminal justice system), and David Alan Sklansky, The Progressive Prosecutor’s Handbook, 50 U.C.
DAVIS L. REV. ONLINE 25, 27 (2017) (describing the priorities new progressive prosecutors should
pursue).
21

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New Federalism and Civil Rights Enforcement

law compliance by engaging more thoughtfully in their defense against
constitutional tort litigation. Sometimes that may require a local government
to accept responsibility for a serious constitutional claim that it might defeat
or wear down through use of tools that are too commonly deployed today.
Having identified flaws in local civil rights ecosystems, we take up our
second goal: to describe and defend reform measures that state and local
policymakers can adopt to improve the culture of civil rights enforcement
and compliance.25 One such measure involves enacting analogues to Section
1983 that would establish a state law right to sue for violations of the state
or federal constitutions that eschews some of the barriers erected by the
Supreme Court that frustrate these claims when brought under federal law.26
We also describe a series of more granular changes in the practice of
budgeting for and litigating constitutional tort claims that can achieve
important gains in the effectiveness of the enforcement regime. Equally
important, we consider the predictable arguments against the reforms we
propose, explaining why policymakers on both sides of the aisle should find
these critiques unpersuasive.27 In the end, then, we offer a platform of local
reforms to improve civil rights enforcement and to plug many of the gaps
that have arisen at the national level. We thus join such jurists as William
Brennan28 and Jeffrey Sutton29 in urging a reinvigorated constitutionalism at
the state and local levels, a constitutionalism aimed specifically at the
enforcement of civil rights.
Our work situates the measures we propose in the school of federalism
to which Heather Gerken, Jessica Bulman-Pozen, and Abbe Gluck have
made notable contributions. 30 Seeking to transcend the debate between
25

See infra Part III (describing these recommendations).
For further discussion of these barriers erected by the Supreme Court, see infra Part I.
27 See infra Part IV (describing these criticisms and our responses).
28 Justice Brennan’s well-known piece sought to encourage the states to recognize, as adequate and
independent grounds of decision, new state criminal procedure protections founded in state constitutions.
See William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 HARV. L.
REV. 489, 490–502 (1977). For criticism of state constitutionalism, see James A. Gardner, The Failed
Discourse of State Constitutionalism, 90 MICH. L. REV. 761, 823–27 (1992), and Robert A. Schapiro,
Identity and Interpretation in State Constitutional Law, 84 VA. L. REV. 389, 391–95 (1998).
29 See JEFFREY S. SUTTON, 51 IMPERFECT SOLUTIONS: STATES AND THE MAKING OF AMERICAN
CONSTITUTIONAL LAW 2–4 (2018) (urging broader and deeper development of state constitutional
doctrines).
30 See Heather K. Gerken, Exit, Voice, and Disloyalty, 62 DUKE L.J. 1349, 1350–51 (2013)
[hereinafter Gerken, Disloyalty]; Heather K. Gerken, Our Federalism(s), 53 WM. & MARY L. REV. 1549,
1551–52 (2012); Heather K. Gerken, Foreword: Federalism All the Way Down, 124 HARV. L. REV. 4,
44–73 (2010) [hereinafter Gerken, Foreword]; Jessica Bulman-Pozen & Heather K. Gerken,
Uncooperative Federalism, 118 YALE L.J. 1256, 1258–59 (2009) [hereinafter Bulman-Pozen & Gerken,
Uncooperative Federalism]; Abbe R. Gluck, Intrastatutory Federalism and Statutory Interpretation:
26

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NORTHWESTERN UNIVERSITY LAW REVIEW

nationalists (who urge unbridled national control) and federalists (who urge
the preservation of state sovereignty and autonomy), this school offers a
conception of federalism that begins with the recognition that state and local
governments play a variety of roles in our system of governance. On any day
of the week in the arena of civil rights enforcement, for example, state and
local governments may find themselves targeted as the objects of national
regulation and enforcement; may act as federal servants in carrying out
federal enforcement programs; and may compete as local centers of
policymaking authority, criticizing and resisting national initiatives either
because they go too far or do not go far enough.31
We combine the nuanced understanding of federalism in these accounts
with a refined version of the traditional argument that state and local
governments can provide a potential counterweight to federal tyranny.32 In
the traditional story, state and local governments were seen as focal points
of resistance to a federal occupying army, issuing literal and figurative calls
to arms. 33 Based on the Trump Administration’s deployment of federal
forces to Portland, Oregon and Washington, D.C. during the summer of 2020
against the wishes of state and local leaders, 34 we acknowledge that local
State Implementation of Federal Law in Health Reform and Beyond, 121 YALE L.J. 534, 539–42 (2011);
Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation, 106 MICH. L. REV. 567,
570–73 (2008); Jessica Bulman-Pozen, Partisan Federalism, 127 HARV. L. REV. 1077, 1080–82 (2014).
31 On the many roles that state and local government actors play in the enforcement of constitutional
rights, see Schwartz, Civil Rights Ecosystems, supra note 5, at 1555–59.
32 Prevention of tyranny features prominently in accounts of the value of federal systems. See
Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (“Just as the separation and independence of the
coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in
any one branch, a healthy balance of power between the States and the Federal Government will reduce
the risk of tyranny and abuse from either front.”); Akhil Reed Amar, Of Sovereignty and Federalism,
96 YALE L.J. 1425, 1450, 1493–94, 1506–09 (1987) (suggesting that states can prevent federal tyranny
by targeting unconstitutional federal action); Andrzej Rapaczynski, From Sovereignty to Process: The
Jurisprudence of Federalism After Garcia, 1985 SUP. CT. REV. 341, 358–60.
33 See THE FEDERALIST NO. 26, at 169 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (“[T]he
state Legislature . . . will constantly have their attention awake to the conduct of the national rulers and
will be ready enough, if any thing improper appears, to sound the alarm to the people and not only to be
the VOICE but if necessary the ARM of their discontent.”). Armed resistance, despite its appeal to Second
Amendment enthusiasts, no longer lies within the choice set of local policymakers. See Edward L. Rubin
& Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903, 928–29
(1994).
34 For a description of federal troops’ assaults of protestors in Washington, D.C. and Portland, see
Rebecca Tan, Samantha Schmidt, Derek Hawkins, Fredrick Kunkle & Jessica Contrera, Before Trump
Vows to End ‘Lawlessness,’ Federal Officers Confront Protestors Outside White House, WASH. POST
(June 2, 2020, 12:30 AM), https://www.washingtonpost.com/local/washington-dc-protest-white-housegeorge-floyd/2020/06/01/6b193d1c-a3c9-11ea-bb20-ebf0921f3bbd_story.html [https://perma.cc/A792N3AY], and Chris McGreal, Federal Agents Show Stronger Force at Portland Protests Despite Order to
Withdraw, GUARDIAN (July 30, 2020, 9:23 AM), https://www.theguardian.com/us-news/2020/jul/30/

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governments continue to need tools to respond to federal occupying forces.35
But we also see a more subtle potential for federal tyranny in the enormous
concentration of power in the President of the United States to enforce civil
rights protections. Emboldened by discretionary control of law enforcement
priorities and unitarian theories of presidential power, presidents today play
an outsized role in deciding which laws to enforce, which groups to target
for investigation, and which to let slide. 36 By recalibrating enforcement
priorities, particularly in an area where private enforcement has been
crippled by standing law and other restrictions on private enforcement, 37
presidents and the agency heads they direct can recalibrate and even abandon
essential law enforcement initiatives.
The Trump Administration’s approach to the oversight of police
departments illustrates these problems of concentrated power. Breaking
sharply with the Obama Administration’s use of the Department of Justice’s
power under 42 U.S.C. § 14141 (now 34 U.S.C. § 12601) to investigate and
remedy systemic racism in policing, the Trump Department of Justice ended

federal-agents-portland-oregon-trump-troops [https://perma.cc/X2BY-KY3J]. For a discussion of state
and local leaders’ calls for the federal government to withdraw their troops, see Amanda Macias, DC
Mayor Tells Trump to Remove Federal Law Enforcement and Military from the City as George Floyd
Protests Continue, CNBC (June 5, 2020, 2:34 PM), https://www.cnbc.com/2020/06/05/george-floydprotests-dc-mayor-tells-trump-to-remove-federal-officers-military-from-city.html
[https://perma.cc/
G7CS-8P95], and McGreal, supra.
35 See Joanna Schwartz, James Pfander & Alexander Reinert, The Simple Way Congress Can Stop
Federal Officials from Abusing Protesters, POLITICO (June 10, 2020, 11:58 AM), https://www.politico.
com/news/magazine/2020/06/10/the-simple-way-congress-can-stop-federal-officials-from-abusingprotesters-309959 [https://perma.cc/U7VR-LETB] (highlighting the need for a revived Bivens action to
check federal enforcement activities in Portland and Washington, D.C.).
36 For accounts of the pre-Trump state of presidential power, see Elena Kagan, Presidential
Administration, 114 HARV. L. REV. 2245, 2319–46 (2001) (describing and assessing the rise of White
House control of policy through presidential administration). For constitutional arguments favoring
expanded presidential control over the hiring, firing, and direction of federal officials, see Steven G.
Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 YALE L.J. 541, 593–
99 (1994); Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. ILL. L. REV. 701,
713 (arguing that only the President can control law execution and must have the authority to execute the
laws or to direct subordinates to do so); and compare Jack Goldsmith & John F. Manning, The Protean
Take Care Clause, 164 U. PA. L. REV. 1835, 1867 (2016) (characterizing as delphic the Take Care Clause
and its grant of presidential powers and duties). But see Daniel D. Birk, Interrogating the Historical Basis
for a Unitary Executive, 73 STAN. L. REV. 175, 182–85 (2021) (questioning the unitary executive theory
by showing that British legal history did not invest the executive with broad removal powers but instead
presumed legislative control of tenure in office).
37 On the important role of private enforcement in the American system of law enforcement and
regulation, see STEPHEN B. BURBANK & SEAN FARHANG, RIGHTS AND RETRENCHMENT: THE
COUNTERREVOLUTION AGAINST FEDERAL LITIGATION 3–4 (2017), and Stephen B. Burbank & Sean
Farhang, Litigation Reform: An Institutional Approach, 162 U. PA. L. REV. 1543, 1583–87 (2014).
Burbank and Farhang document a concerted effort by politicians, jurists, and business groups to curtail
private rights enforcement through a wide range of procedural doctrines. See id. at 1551–80.

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NORTHWESTERN UNIVERSITY LAW REVIEW

such oversight.38 Well-known Article III standing law also limits the ability
of private individuals to bring such pattern-or-practice suits. 39 With
concentrated enforcement authority, the Trump Administration
accomplished much by doing nothing, both in response to George Floyd’s
killing and to white-supremacist violence in Charlottesville in 2017.40 To be
sure, the Biden Administration appears far more interested than its
predecessor in advancing civil rights. 41 But the scope of civil rights
protections need not and should not depend on the proclivities of the person
who happens to hold the nation’s highest office.
We see many benefits that accrue from shifting the balance of civil
rights enforcement so that it is more equally shared by federal, state, local,
and private actors. Although state and local civil rights enforcement schemes
may be encouraged and supported by the federal government through state–
federal executive agreements and other initiatives,42 they can also provide an
important counterweight when federal rights enforcement is in retreat.
Further, by recognizing that individuals have a right to institute suits to
enforce their own constitutional rights, private enforcement puts the tools of
law enforcement in the hands of a diffuse citizenry, in keeping with the idea
that federalism serves to diffuse power.43 Enforcement thus would depend on
private initiative, rather than on the say-so of the Department of Justice.
Coupling private enforcement with the support of a regime of fee-shifting
can help to ensure that private individuals have the financial wherewithal to

38

Section 14141 (now codified at 34 U.S.C. § 12601) was enacted by Congress in 1994 and
authorizes the Department of Justice to investigate and seek equitable relief against state and local law
enforcement agencies that are engaging in patterns of unconstitutional conduct. For a description of the
statute and the Trump Administration’s announcement that it would no longer oversee local police
departments and would reconsider structural reforms put in place by prior administrations, see Stephen
Rushin, Police Reform During the Trump Administration, 2017 U. ILL. L. REV. ONLINE 1, 1.
39 See City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) (refusing to grant standing to plaintiff
injured by a police chokehold who sought to enjoin the city’s chokehold policy).
40 For a discussion of the Charlottesville rally and its repercussions, see A Year Ago, the
Charlottesville Rally Shined a Light on White Supremacists and Sparked Overdue Conversations, PBS
NEWSHOUR (Aug. 10, 2018, 6:35 PM), https://www.pbs.org/newshour/show/a-year-ago-thecharlottesville-rally-shined-a-light-on-white-supremacists-and-sparked-overdue-conversations [https://
perma.cc/P2CQ-MVZP].
41 See Jacob Schulz & Tia Sewell, Pattern-or-Practice Investigations and Police Reform, LAWFARE
(Apr. 30, 2021, 9:48 AM), https://www.lawfareblog.com/pattern-or-practice-investigations-and-policereform [https://perma.cc/ND4V-CZ22] (describing the Biden Administration’s intention to more actively
pursue Section 14141 investigations).
42 See Jessica Bulman-Pozen, Executive Federalism Comes to America, 102 VA. L. REV. 953, 971–
93 (2016) (describing the way federal and state executive actors negotiate over the implementation of
many policy initiatives, often without legislative engagement).
43 On the role of federalism in diffusing power, see Michael W. McConnell, Federalism: Evaluating
the Founders’ Design, 54 U. CHI. L. REV. 1484, 1493–94 (1987).

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mount effective litigation. 44 In addition, by writing provisions for such
litigation into the laws of state and local governments, policymakers can
place them largely beyond the power of federal Executive Branch actors.45
Effective enforcement will thus survive a change in DOJ enforcement
priorities. Without abandoning our call for national reforms, this Article aims
to provide a set of tools that state and local governments can implement to
secure the project of civil rights enforcement at the local level.
Offering both legislative and administrative solutions, we set forth and
defend our proposed platform for state and local reform in five Parts. Part I
describes the many things that have gone wrong with civil rights
enforcement at the national level and uses these well-known problems as a
framework for evaluating local institutions. Reporting on our survey of state
law and practice, Part II explains that most states have so far refrained from
developing an independent framework for the enforcement of constitutional
norms. Yet even in the states that may see their role as one of cooperation
with the enforcement regime of Section 1983, we find that those goals are
undermined by the ways in which state and local government officials budget
for and manage the risks attendant to civil rights enforcement. Building on
this close study of what states have done and might yet do, Part III offers a
menu of reform options and describes a model state statutory analogue to
Section 1983. Part III also proposes administrative changes designed to
improve the way local governments respond to civil rights enforcement
through budgeting, oversight, litigation, and risk-management decisions.
Part IV raises and addresses predictable concerns about these proposals.
Part V explains how the adoption of our reform agenda would improve
the ecosystems of civil rights enforcement. First, and most directly, reforms
would better ensure compensation of the victims of constitutional violations
and encourage steps by governments to prevent future violations. Second,
even if only some jurisdictions acted, such reforms would eliminate qualified
immunity and other first-order barriers to the articulation and development
of legal norms. In those jurisdictions, rights would no longer be trapped in
the amber of prior “clearly established” law, allowing constitutional law to
develop and become established for future cases. Third, the changes we
propose might restore some faith in the law as a tool for addressing systemic
racism and the brutality that permeates the criminal legal system. Fourth, the
implementation of these reforms in some jurisdictions would allow others to
learn from their experience, fostering fruitful cross-pollination across states
44

See infra note 191 and accompanying text.
In general, the federal government does not administer or enforce state and local law. One can, of
course, imagine federal legislation adopted to preempt the field of federal constitutional rights
enforcement, but such legislation would not displace state court enforcement of state constitutional rights.
45

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and localities. Fifth, and perhaps most importantly, unlike changes proposed
through national legislation or attempts to convince the Supreme Court to
revisit doctrine, those we canvass in this Article can be accomplished at the
state or local level without delay.
I.

EVALUATING THE FEDERAL CHALLENGES TO CIVIL
RIGHTS ENFORCEMENT

Civil rights enforcement nicely illustrates the pluralistic view of
federalism offered by Heather Gerken and others, whereby national, state,
and local government actors can work independently and in concert in
various ways either to encourage or undermine the project of defining and
enforcing constitutional rights.46 For much of the Early Republic, states took
the lead in providing common law remedies for the victims of government
wrongdoing, with occasional assists from federal courts and some oversight
from the Supreme Court.47 During the First Reconstruction, in response to
the grievous failure of Southern courts to secure the rights of people made
free by the Thirteenth Amendment, Congress adopted Section 1983.48 But
Section 1983 lay dormant for nearly a century until the Warren Court revived
it as a tool of civil rights litigation during the Second Reconstruction.49 That
resuscitation made the federal government the primary enforcer of civil

Gerken’s federalism envisions minority groups gaining influence through their powers of “voice”
(exercising free-speech rights or participating in national elections, for example), “exit” (focusing on state
elections or private associations), and “agency” (which includes the ability to contest federal priorities by
“exercising control over the administration of national policy”). Gerken, Disloyalty, supra note 30, at
1349–51, 1350 n.3. When the federal government conscripts states into cooperative federalism
programs—foreclosing exit—states use their voice to adjust the program to accommodate local needs.
Id. at 1363–64. As policymaking takes root at the state level, the states’ status as servants, insiders, and
allies can also lead to dissent, rivalry, and challenge. Bulman-Pozen & Gerken, Uncooperative
Federalism, supra note 30, at 1261–64. On the role of states as sites for decisions to contest or extend
federal initiatives, see Judith Resnik, Law’s Migration: American Exceptionalism, Silent Dialogues, and
Federalism’s Multiple Ports of Entry, 115 YALE L.J. 1564, 1627–33 (2006).
47 On the nineteenth-century framework for the enforcement of rights through state court common
law litigation, see James E. Pfander, Dicey’s Nightmare: An Essay on the Rule of Law, 107 CALIF. L.
REV. 737, 748, 754, 762 (2019). The Supreme Court would ensure the effectiveness of the enforcement
regime by exercising appellate jurisdiction over common law suits against federal officials. See, e.g.,
Crowell v. McFadon, 12 U.S. (8 Cranch) 94, 98 (1814) (reviewing the state court’s use of common law
remedies to secure federal-official compliance with law); Slocum v. Mayberry, 15 U.S. (2 Wheat.) 1, 9–
10 (1817) (reviewing Rhode Island state court’s use of common law remedies against a federal officer).
Congress would occasionally assign jurisdiction over such matters to lower federal courts. See, e.g.,
United States v. Nourse, 34 U.S. (9 Pet.) 8, 29–32 (1835) (giving effect to a statute that authorized lower
federal courts to entertain suits to enjoin federal debt-collection efforts).
48 See, e.g., Monroe v. Pape, 365 U.S. 167, 174–75 (1961) (reviewing the history of Section 1983).
49 Id. at 187. On the importance of Monroe in defining Section 1983 as a Warren Court tool for civil
rights enforcement, see Myriam E. Gilles, Police, Race and Crime in 1950s Chicago: Monroe v. Pape as
Legal Noir, in CIVIL RIGHTS STORIES 41, 53–54 (Myriam E. Gilles & Risa L. Goluboff eds., 2008).
46

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rights protections—and state and local governments the primary targets of
that civil enforcement—for the past sixty years.50
State and local governments have taken relatively few steps to foster an
independent local culture of rights recognition and enforcement. But that
may be about to change. Unprecedented critical attention has recently been
paid to the current scheme of federal constitutional enforcement, particularly
to a series of hurdles created by the Supreme Court that civil rights litigants
must overcome to hold state and local actors accountable. Those restrictions
at the national level create an opportunity for state and local governments to
play a more constructive role. We do not expect that all states and localities
will take up this reform agenda. But the public outcry over systemic racism
in policing and other public institutions may usher in a new phase of civil
rights federalism. And we see evidence that these proposals can appeal not
only to typically “progressive” local government officials but also to
conservative and libertarian officials as well.51
We set the stage for a discussion of prospects for state-level reforms by
briefly describing the many barriers to enforcement that have arisen at the
national level. We focus on Section 1983, the foundation for the enforcement
of federal constitutional rights against state actors. By general agreement, the
statute seeks to compensate people whose constitutional rights have been
violated, to deter individual officers and policymakers alike through
threatened liability for these awards, and to articulate legal norms to shape
the policy choices of well-meaning government actors. 52 Yet over time,
50 As the Supreme Court explained in 1972, “The very purpose of § 1983 was to interpose the federal
courts between the States and the people, as guardians of the people’s federal rights.” Mitchum v. Foster,
407 U.S. 225, 242 (1972).
51 See, e.g., Karen M. Blum, Qualified Immunity: Time to Change the Message, 93 NOTRE DAME L.
REV. 1887, 1890–91 (2018) (describing the libertarian Cato Institute’s “assault” on qualified immunity);
David Deerson, The Case Against Qualified Immunity, NAT’L REV. (July 13, 2020, 3:50 PM),
https://www.nationalreview.com/bench-memos/the-case-against-qualified-immunity/ [https://perma.cc/
WD27-Y2B5] (discussing a Congressional bill to end qualified immunity introduced by thenCongressman and Libertarian Justin Amash); Press Release, Ayanna Pressley, Member, House of
Representatives, Reps. Pressley, Amash Introduce Bipartisan Legislation to End Qualified Immunity
(June 4, 2020), https://pressley.house.gov/media/press-releases/reps-pressley-amash-introducebipartisan-legislation-end-qualified-immunity [https://perma.cc/MFH2-G2CR] (quoting Justin Amash
saying “[q]ualified immunity protects police and other officials from consequences even for horrific rights
abuses”). For further discussion of the benefits of these proposals to government officials across the
ideological spectrum, see infra Part V.
52 See, e.g., Wyatt v. Cole, 504 U.S. 158, 161 (1992) (“The purpose of § 1983 is to deter state actors
from using the badge of their authority to deprive individuals of their federally guaranteed rights and to
provide relief to victims if such deterrence fails.”); City of Riverside v. Rivera, 477 U.S. 561, 575 (1986)
(“[T]he damages a plaintiff recovers contributes significantly to the deterrence of civil rights violations
in the future . . . particularly . . . in the area of individual police misconduct, where injunctive relief
generally is unavailable.”); Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and

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whether by inadvertence or design, the Supreme Court has limited the ability
of plaintiffs to succeed in Section 1983 suits, even when their constitutional
rights have been violated, and has thus limited the intended power of the
statute to compensate, deter, and articulate rights.53 We begin with the two
areas that have deservedly received the most attention and criticism—
qualified immunity and municipal liability—and then survey a host of
additional barriers that the Court has put in place.
A. Qualified Immunity
Among its most notorious limitations on Section 1983, the Supreme
Court’s judge-made doctrine of qualified immunity protects law
enforcement officers from damages liability—even when they violate the
U.S. Constitution—if the law was not “clearly established.” 54 When it
created qualified immunity in 1967, the Supreme Court described the defense
as a “good faith” immunity to shield officers from damages liability when
they believed they were acting constitutionally.55 But the Court remade the
doctrine in 1982 such that officers’ subjective intent was no longer
relevant—the key question became whether officers had violated “clearly
established” law. 56 In subsequent years, the Court has increasingly
broadened the protections of qualified immunity, suggesting that the law is
clearly established only when a prior Supreme Court or circuit court opinion
has held unconstitutional virtually identical behavior. In the words of the
Supreme Court, qualified immunity now protects all but “the plainly

Constitutional Remedies, 104 HARV. L. REV. 1731, 1788 (1991) (arguing that a damages award against a
city police force “does not require discontinuation of [unconstitutional] practices” but “exerts significant
pressure on government and its officials to respect constitutional bounds”); Pamela S. Karlan, The
Paradoxical Structure of Constitutional Litigation, 75 FORDHAM L. REV. 1913, 1918 (2007) (arguing that
the threat of suit can “induce the government to change its policies”).
53 The barriers we discuss here include qualified immunity, rigorous municipal liability standards,
higher pleading requirements (particularly for claims against supervisory defendants), Article III standing
limitations for injunctive relief, and the narrowing of plaintiffs’ entitlement to attorneys’ fees. See infra
Sections I.A–I.C. Other obstacles exist as well, such as sovereign immunity and absolute immunity
defenses, but these are beyond the scope of this Article. See, e.g., Richard H. Fallon, Jr., Bidding Farewell
to Constitutional Torts, 107 CALIF. L. REV. 933, 957 (2019) (summarizing barriers); Pamela S. Karlan,
The Irony of Immunity: The Eleventh Amendment, Irreparable Injury, and Section 1983, 53 STAN. L.
REV. 1311, 1314–15 (2001) (summarizing the implications of sovereign immunity jurisprudence).
54 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
55 Pierson v. Ray, 386 U.S. 547, 555–57 (1967) (recognizing a good faith immunity for police
officers who arrested civil rights activists under an unconstitutional statute).
56 Harlow, 457 U.S. at 816–18 (eliminating the subjective prong of the qualified immunity analysis
and holding instead that “government officials performing discretionary functions, generally are shielded
from liability for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known”).

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incompetent or those who knowingly violate the law.”57 Indeed, over the past
twenty years, in nearly every Supreme Court case heard by the Court,
including many involving the use of deadly force by police officers, a
majority of Justices have found that officers should have been granted
qualified immunity.58
Cases in which officers have searched, arrested, shot, and killed people
but have been shielded from liability simply because there was not a prior
court decision with sufficiently similar facts have prompted widespread
outcry about qualified immunity doctrine.59 But qualified immunity causes
more insidious harms as well. Because the Supreme Court allows courts to
grant qualified immunity without ruling on whether an officer violated the
Constitution,60 qualified immunity stunts the development of constitutional
law. In granting qualified immunity without ruling on the merits of the
constitutional claim, a court creates no new clearly established law. Rights
become frozen, leaving citizens unprotected from future constitutional
violations until a court chooses to rule on the constitutional question.
Hindering the development of constitutional law in this manner not only
harms the individual plaintiffs in these cases but also makes it more difficult
for government agencies to craft policies and formulate training that comply
with the law.
Qualified immunity has another underappreciated vice: it increases the
cost, time, and complexity of civil rights litigation. Understanding the
intricacies of qualified immunity doctrine is difficult and time-consuming,
briefing qualified immunity motions requires searching for court decisions
with sufficiently similar facts, and the availability of interlocutory appeal of
qualified immunity denials means that cases can be stopped in their tracks
for a year or more as motions to dismiss and summary judgment motions are

57

Malley v. Briggs, 475 U.S. 335, 341 (1986) (refusing to confer absolute immunity on officers
seeking warrants but recognizing the scope of protection that qualified immunity confers); Ashcroft v. alKidd, 563 U.S. 731, 743 (2011).
58 See William Baude, Is Qualified Immunity Unlawful?, 106 CALIF. L. REV. 45, 82 (2018)
(summarizing cases decided by the Supreme Court since it recognized the qualified immunity defense).
59 See, e.g., Hailey Fuchs, Qualified Immunity Protection for Police Emerges as Flash Point Amid
Protests, N.Y. TIMES (Mar. 8, 2021), https://www.nytimes.com/2020/06/23/us/politics/qualifiedimmunity.html [https://perma.cc/86R3-GTLC] (“Once a little-known rule, qualified immunity has
emerged as a flash point in the protests spurred by Mr. Floyd’s killing and galvanized calls for police
reform.”); Madison Pauly, Limiting Qualified Immunity for Cops Was a Bipartisan Issue After George
Floyd’s Murder. What Happened?, MOTHER JONES (May 25, 2021), https://www.motherjones.com/
crime-justice/2021/05/qualified-immunity-police-george-floyd/ [https://perma.cc/L3K9-U6EU] (“In the
weeks after Floyd was killed, limiting qualified immunity became the closest thing there was to a
consensus issue in police reform.”).
60 See Pearson v. Callahan, 555 U.S. 223, 236 (2009).

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considered on appeal.61 For each of these reasons, two of us have found that
the costs and challenges of qualified immunity discourages attorneys from
accepting civil rights cases with lower damages or without prior factually
similar precedent and may discourage attorneys from bringing any civil
rights case at all.62
B. Municipal Liability
Qualified immunity doctrine often operates in tandem with limits on
municipal liability to frustrate the goals of government accountability. In
1978, in a decision called Monell v. Department of Social Services of New
York, the Supreme Court held that Section 1983 claims could be brought
against local government entities—cities, counties, and other local
governments.63 But while these entities cannot invoke a qualified immunity
defense against such claims, they can be subject to liability only when they
have adopted a policy, custom, practice, or usage that violates the
Constitution.64
When the Supreme Court decided Monell, they rejected a notion
common in other areas of the law that employers would be vicariously liable
for misconduct by their employees.65 Instead, the Court embraced rigorous
standards of proof for claims brought under Monell and its progeny in order
to “ensure[] that a municipality is held liable only for those deprivations
resulting from the decisions of its duly constituted legislative body or of
those officials whose acts may fairly be said to be those of the
municipality.”66
61

In general, the federal system requires that a district court enter a final judgment before any appeal,
see 28 U.S.C. § 1291, but the Supreme Court permits interlocutory appeals for a narrow category of
decisions, including denials of qualified immunity, see Mitchell v. Forsyth, 472 U.S. 511, 526–27 (1985).
62 See Reinert, Does Qualified Immunity Matter?, supra note 4, at 494–95 (reporting the impact of
qualified immunity on attorneys’ decisions to accept civil rights cases against federal actors); Joanna C.
Schwartz, Qualified Immunity’s Selection Effects, 114 NW. U. L. REV. 1101, 1131–38 (2020) [hereinafter
Schwartz, Qualified Immunity’s Selection Effects] (reporting the impact of qualified immunity on
attorneys’ decisions to accept civil rights cases against state and local law enforcement officers).
63 436 U.S. 658, 690 (1978). States and state agencies, in contrast, may not be sued for civil rights
violations via Section 1983. Quern v. Jordan, 440 U.S. 332, 338 (1979) (ruling that Section 1983 was not
intended to sweep away the Eleventh Amendment sovereign immunity of the states); Will v. Mich. Dep’t
of State Police, 491 U.S. 58, 64 (1989) (ruling that state officials cannot be sued in their “official”
capacities under Section 1983).
64 See Monell, 436 U.S. at 693–94 (holding that respondeat superior does not apply in Section 1983
actions against municipal entities).
65 Id. at 694–95 (explaining why the Court rejected respondeat superior liability for Section 1983
claims).
66 Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 403–05 (1997) (ruling that a local government
cannot be held liable under Section 1983 for improperly hiring an officer unless the government knew
that the officer was highly likely to inflict the particular injury at issue in the case).

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If the plaintiff alleges that the constitutional violation was caused by a
municipality’s omission—say, the failure to train or properly supervise line
officers—the plaintiff must meet a high standard by showing that the
municipality should have known “to a moral certainty” that their failure to
act would result in constitutional violations.67 In most cases, proof of such
knowledge requires evidence of past similar constitutional violations that
would have put officials on notice of the need for better training or
supervision, and the Supreme Court has decided that those prior instances
must closely resemble the allegations at hand.68 Under this liability standard,
courts and commentators agree that, except for claims based on a facially
unconstitutional formal policy, it is very difficult to obtain damages directly
against a municipality for constitutional violations.69 Indeed, Fred Smith has
described Monell as a form of sovereign immunity for municipalities.70 Thus,
even without the qualified immunity provided to individual officers, the
Supreme Court’s limitation on municipal liability operates as a significant
barrier to relief for those injured by unconstitutional conduct.
C. Other Barriers
Qualified immunity and Monell only begin to scratch the surface of the
barriers that the Court has erected to make it more difficult for plaintiffs
whose constitutional rights have been violated to succeed in court. For
example, the Court has also made it exceedingly difficult to prevail in
constitutional claims against supervisors. Courts long assumed that
supervisors could be held liable under Section 1983 if they failed to supervise
or train their subordinate, if that failure amounted to gross negligence or
recklessness, and if that failure to supervise or train led to the constitutional

67 City of Canton v. Harris, 489 U.S. 378, 390 n.10 (1989) (explaining that the failure to train officers
can amount to an unconstitutional “policy” if policymakers “know to a moral certainty” that officers need
training in an area but fail to provide it to them or if “the police, in exercising their discretion, so often
violate constitutional rights that the need for further training must have been plainly obvious to the city
policymakers, who, nevertheless, are ‘deliberately indifferent’ to the need”).
68 See Connick v. Thompson, 563 U.S. 51, 62–63 (2011) (ruling that the plaintiff had not met his
burden of showing that the district attorney’s office had a pattern of failing to produce exculpatory
evidence, despite the fact that there had been four prior overturned convictions for failing to turn over
exculpatory evidence, because those four convictions did not involve the same type of blood evidence at
issue in Thompson’s case).
69 See id. at 61 (“A municipality’s culpability for a deprivation of rights is at its most tenuous where
a claim turns on a failure to train.”); Brown, 520 U.S. at 406 (describing the “much more difficult
problems of proof” for Monell claims not based on formal policies or direct municipal authorization);
J.K.J. v. Polk County, 960 F.3d 367, 377–78 (7th Cir. 2020) (en banc) (contrasting Monell claims based
on formal policies with claims based on inaction), cert. denied, 141 S. Ct. 1125 (2021).
70 See Fred Smith, Local Sovereign Immunity, 116 COLUM. L. REV. 409, 462–65 (2016).

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violation.71 But in 2009, in Ashcroft v. Iqbal, the Supreme Court rejected this
longstanding formulation, holding instead that “each Government official,
his or her title notwithstanding, is only liable for his or her own
misconduct.”72 Lower courts have struggled to apply this aspect of Iqbal,
with particular difficulty in determining what degree of intent is necessary
to establish supervisory liability and whether the intent requirements differ
depending upon the constitutional right at stake. 73 Iqbal’s supervisory
liability standard has, as Karen Blum noted, “left a sea of uncertainty,
confusion, and disagreement among the lower courts as to when, if ever,
supervisory liability may attach for claims based on inaction, rather than
affirmative acts.”74
The Supreme Court has also made it difficult to seek forward-looking
relief for civil rights violations. In 1983, in City of Los Angeles v. Lyons, the
Supreme Court ruled that plaintiffs do not have standing to sue under Section
1983 for injunctive relief unless they can show “a real and immediate threat”
of a future constitutional violation. 75 In Lyons itself, this meant that the
plaintiff, who had been subjected to a chokehold with no provocation by a
Los Angeles police officer, could not obtain an injunction prohibiting the
future use of chokeholds by the department because he could not show a
sufficient likelihood that he would be subjected to a chokehold again.76 This
doctrine forecloses many claims for injunctive relief against law
enforcement.77
The Court has also made it more difficult for plaintiffs who prevail on
their Section 1983 claims to recover fees for their attorneys. In 1976,
Congress passed Section 1988, a statute that allows plaintiffs who prevail in
Section 1983 litigation to recover their reasonable attorneys’ fees from the
government.78 When Congress passed Section 1988, the legislative history
made clear the view that, in order for Section 1983 to serve as an effective
civil rights enforcement mechanism, attorneys needed financial incentives to
bring cases on behalf of plaintiffs whose constitutional rights were violated.79
71 See Patrick Boynton, Supervisory Liability in the Circuit Courts After Iqbal, 21 U. PA. J. CONST.
L. 639, 642–43 (2018).
72 556 U.S. 662, 677 (2009).
73 Boynton, supra note 71, at 639–40.
74 Karen M. Blum, Section 1983 Litigation: The Maze, the Mud and the Madness, 23 WM. & MARY
BILL RTS. J. 913, 921 (2015).
75 461 U.S. 95, 105 (1983).
76 Id. at 105–06.
77 Reinert, Procedural Barriers to Civil Rights Litigation, supra note 4, at 943–44.
78 Civil Rights Attorney’s Fees Awards Act of 1976, Pub. L. No. 94-559, 90 Stat. 2641 (codified as
amended at 42 U.S.C. § 1988).
79 S. REP. NO. 1011, at 2 (1976).

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The entitlement to attorneys’ fees when plaintiffs prevail was understood as
“the fuel that drives the private attorney general engine.”80 But two Supreme
Court decisions interpreting Section 1988 greatly limited the power of the
statute to encourage attorneys to bring Section 1983 cases on plaintiffs’
behalf. The first, Evans v. Jeff D., held that defendants can condition
settlement agreements on the waiver of attorneys’ fees. 81 The second,
Buckhannon Board & Care Home, Inc. v. West Virginia Department of
Health and Human Resources, held that plaintiffs’ attorneys are not viewed
as prevailing—and, therefore, are not entitled to their fees—if the suit was a
catalyst for a change in defendants’ behavior without a formal court ruling.82
These two decisions, together, have been described as sounding a “requiem
for Section 1983.”83
*

*

*

In 1961, the Supreme Court’s landmark decision in Monroe v. Pape
opened the door for people to bring Section 1983 claims against state and
local government officials who violated their constitutional rights. Since
Monroe, as this Part has shown, the Court has limited the potential power of
Section 1983 in multiple ways. Its creation of qualified immunity, rigorous
municipal liability standards, pleading requirements, limitations on
injunctive relief, and caveats for plaintiffs’ attorneys’ entitlement to fees
have combined to make it exceedingly difficult for plaintiffs to use Section
1983 in its intended manner—as a federal tool to seek redress against state
and local officials for constitutional violations.
II. STATE AND LOCAL ALTERNATIVES TO FEDERAL CIVIL RIGHTS
ENFORCEMENT UNDER SECTION 1983
Part I’s catalog of problems at the national level sets the stage for civil
rights reform at the state and local level. As a first step in that reform project,
this Part reports on our examination of the legal and institutional frameworks
that states have put in place to redress government wrongdoing. We focus on
three different state and local practices: (1) state law causes of action for
constitutional violations, (2) state and local budgeting and indemnification

80

Pamela S. Karlan, Disarming the Private Attorney General, 2003 U. ILL. L. REV. 183, 205.
475 U.S. 717, 737–38 (1986).
82 532 U.S. 598, 605 (2001).
83 Paul D. Reingold, Requiem for Section 1983, 3 DUKE J. CONST. L. & PUB. POL’Y 1, 31–32 (2008)
(describing the ways in which Buckhannon and Evans have made it difficult for lawyers to accept the
very cases that Congress intended Section 1988 to encourage—cases involving important rights but
limited or no damages).
81

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practices, and (3) approaches to defending against Section 1983 claims
brought against government defendants. For reasons we explain, all of these
are subjects of state and local control that have an important but
underappreciated impact on civil rights enforcement.
Perhaps unsurprisingly, we find that state and local governments vary
widely in how they approach civil rights enforcement. But apart from the
recent reform measures that we noted in the introduction, we see only modest
evidence of state experimentation. Despite evidence that state and local
governments have innovated in other areas,84 we find that states do not often
establish independent institutional frameworks to enforce constitutional
rights and sometimes adopt measures that actively undermine effective
enforcement.85 We also find that much can be done to improve the manner
in which local governments budget for and pay successful civil rights
claimants. Or to put the matter in more hopeful terms, we conclude that
policymakers can dramatically improve civil rights enforcement by
implementing the reform agenda we outline in Part III.
A. State Statutory Frameworks to Vindicate Claims of
Government Wrongdoing
Invoking the principle of federal supremacy articulated in Testa v.
Katt,86 the Supreme Court has consistently held that state courts must provide
a forum for the assertion of Section 1983 claims against local governments
and state and local officials.87 States thus have an obligation to play a role as
conscripts in the cooperative federalism program that the Court has erected.88

84 See, e.g., Joseph Blocher, Firearm Localism, 123 YALE L.J. 82, 93–103 (2013) (describing local
laws regarding gun control); Johnson, supra note 14, at 119–22 (describing innovative state and local
legislation to prohibit discrimination and advance equality); Schragger, supra note 14, at 148–50
(describing variation in cities’ approach to same-sex marriage).
85 See infra Sections II.B–II.C.
86 330 U.S. 386, 394 (1947).
87 See Haywood v. Drown, 556 U.S. 729, 740 n.6 (2009) (citing Testa, 330 U.S. at 388, 394). While
the Court has sometimes suggested a willingness to defer to state refusals to hear federal claims on the
basis of a valid excuse, the Testa principle has been applied fairly stringently to Section 1983 claims,
narrowing the range of valid excuses. See Felder v. Casey, 487 U.S. 131, 152 (1988) (holding that a
failure to comply with a state notice of claim provision was not a valid excuse to refuse to hear a Section
1983 claim). The only exception has been the one recognized for suits against the states themselves. See
Alden v. Maine, 527 U.S. 706, 759–60 (1999) (rejecting argument that the Testa principle obliged the
states to entertain suits against themselves to enforce rights conferred pursuant to Congress’s commerce
power); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 67 (1989) (concluding that states were not
persons within the coverage of Section 1983 and thus avoiding the question as to state’s obligation to
entertain suit against itself).
88 See Haywood, 556 U.S. at 740; Felder, 487 U.S. at 152; Howlett v. Rose, 496 U.S. 356, 380 (1990)
(holding that a local school cannot invoke state law immunity to block suit brought in state court under
Section 1983).

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But what affirmative steps have the states taken to furnish an alternative state
law framework for the assertion of similar claims? Appendix A collects the
results of our survey of state legislative and judicial practice. As this Section
explains, we found that only eight states have conferred a statutory right
analogous to Section 1983 to pursue constitutional tort litigation. Of the
states without a statutory cause of action, sixteen have recognized an implied
cause of action for some constitutional violations.89 The remainder, twentysix states in all, appear to rely on garden-variety tort liability to secure
government accountability.
Briefly summarized, our findings are as follows:
•

•
•

•

States typically allow victims to pursue state law tort claims,
for such common law torts as assault and battery, but often
impose limits on and immunities from such liability to protect
official defendants.
The majority of states (twenty-six) make no provision, by
statute or judicial decision, for the litigation of constitutional
tort claims against state and local officials.90
Of the remaining twenty-four states, courts in sixteen have
adopted only some form of implied right of action (IROA) to
allow constitutional tort claims, at least in some situations, to
proceed.91
Many of these sixteen IROA states have incorporated versions
of the doctrine of qualified immunity as a defense to the implied

89 Connecticut recently enacted legislation creating a limited state law cause of action analogous to
Section 1983. See infra Appendix A, Table A2. Thus, even though Connecticut courts also had recognized
an implied cause of action for some constitutional torts, we categorize it here as a state with a Section
1983 analogue.
90 There are twenty-three states in which courts have explicitly rejected an implied cause of action
under their constitutions: Alabama, Alaska, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana,
Kansas, Kentucky, Minnesota, Missouri, Nebraska, New Hampshire, North Dakota, Ohio, Oregon,
Pennsylvania, South Carolina, Tennessee, Washington, and Wyoming. In an additional three states, no
cause of action has been recognized, but courts consider it an open question whether it is appropriate to
do so: Arizona, Nevada, and South Dakota. See infra Appendix A, Table A1.
91 These states are Iowa, Louisiana, Maryland, Michigan, Mississippi, Montana, New York, North
Carolina, Oklahoma, Rhode Island, Texas, Utah, Vermont, Virginia, West Virginia, and Wisconsin.
Connecticut courts had recognized an implied cause of action limited to search and seizure and false
arrest, with qualified immunity, but it recently adopted a statute creating a cause of action for
constitutional violations, so we do not include it in our count here. Other than North Carolina, all these
states have significantly limited the reach of the implied cause of action. For example, Rhode Island,
Texas, and Utah generally limit any implied cause of action to provisions that are self-executing, which
tends to exclude Bill of Rights-type provisions. And Louisiana, Maryland, Michigan, Mississippi,
Oklahoma, Virginia, West Virginia, and Wisconsin have recognized implied cause of action solely to
enforce due process, excessive force, and/or search and seizure violations. See infra Appendix A, Table
A2.

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•

•

right of action and make no provision for the payment of
attorneys’ fees.92
Eight states have adopted statutes (Section 1983 analogues)
that authorize at least some constitutional tort claims to proceed
as a matter of state law.93 Of these eight Section 1983 analogue
states, most make provisions for the payment of attorneys’ fees
to prevailing plaintiffs. But most also incorporate some form of
qualified immunity and have other limitations on the scope of
their statutory rights of action.
California, which has adopted an analogue to Section 1983 that
provides a limited cause of action for some constitutional
violations, has declined to adopt the Supreme Court’s qualified
immunity defense to the limited constitutional tort liability it
allows (although there is an applicable state law immunity).
Colorado and New Mexico recently joined this very exclusive
club.94

In evaluating the effectiveness of these alternative regimes of
government accountability, we first consider the most common form of
redress: the state tort claim against the responsible official. Most (but not all)
states allow government officials to be sued for state torts—assault, battery,
false imprisonment, and the like. 95 Many of the state tort regimes in our
survey impose respondeat superior liability on government entities.96
92 Montana is one exception, given that the state supreme court has held that qualified immunity is
not appropriate for implied causes of action under the Montana constitution. Dorwart v. Caraway, 58 P.3d
128, 136 (Mont. 2002). And in Michigan, there is no sovereign immunity for the state where a
constitutional violation was caused by custom or policy. Mays v. Governor of Mich., 954 N.W.2d 139,
155 (Mich. 2020). Along similar lines, the Utah Governmental Immunity Act does not apply to claims
alleging state constitutional violations. See Spackman v. Bd. of Educ., 16 P.3d 533, 537 n.7 (Utah 2000).
93 These are Arkansas, California, Colorado, Connecticut, Maine, Massachusetts, New Jersey, and
New Mexico.
94 See supra notes 7–9 and accompanying text.
95 See Lawrence Rosenthal, A Theory of Governmental Damages Liability: Torts, Constitutional
Torts, and Takings, 9 U. PA. J. CONST. L. 797, 805–09 (2007). For an overview of these state tort claims
and associated immunities, see State Sovereign Immunity and Tort Liability in All 50 States,
MATTHIESEN, WICKERT & LEHRER, S.C. (Jan. 5, 2021), https://www.mwl-law.com/wp-content/
uploads/2018/02/STATE-SOVEREIGN-IMMUNITY-AND-TORT-LIABILITY-CHART.pdf [https://
perma.cc/BLC7-33J7].
96 See, e.g., ALA. CODE § 11-47-190 (2021) (permitting action against municipality for negligent
conduct by employees); FLA. STAT. § 768.28 (2021) (establishing liability of state and municipalities for
tortious conduct of employees); Brown v. King, 767 N.E.2d 357, 360 (Ill. App. Ct. 2001) (“[A]s a general
rule, a municipality may be held liable for the tortious acts of police officers acting in the scope of their
employment.”); Wilson v. Isaacs, 929 N.E.2d 200, 203 (Ind. 2010) (holding a municipality liable under
respondeat superior for police excessive force); KAN. STAT. ANN. § 75-6103 (2021) (establishing
governmental liability, subject to exceptions, for wrongful acts of employees); City of Lexington v. Yank,
431 S.W.2d 892, 894–95 (Ky. 1968) (establishing that a municipality could be held liable under

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Yet however well it works as to claims that sound in negligence, the
state tort option offers little practical recourse for constitutional harms. For
starters, the interests protected by state tort law, although they often overlap
to some degree, do not always align well with constitutional interests.
Nineteenth-century common law did not, for example, bar racially
discriminatory practices. What’s more, states may narrowly define the
course and scope of an officer’s employment for purposes of respondeat
superior liability. 97 Finally, state immunities for state tort liability, even
though calibrated in terms of good faith rather than in terms of legal clarity,
further narrow the ability to prevail, playing a role similar to qualified
immunity. 98 Couple these limits with the absence of any provision for
attorneys’ fees to support litigation of common law tort claims, and one can
quickly see why they do not offer an effective alternative source of
remediation for constitutional violations.99
In the minority of states that make some provision for constitutional tort
claims under the state or federal constitutions, similar barriers complicate
effective remediation.100 In the sixteen states with implied rights of action
(and no statutory analogues to Section 1983), the right to sue extends to only
respondeat superior for excessive force by police officer); Yang v. Nutter, No. A07–232, 2008 WL
186182, at *3 (Minn. Ct. App. Jan. 22, 2008) (noting that municipalities are generally liable for
employees’ torts unless official immunity attaches); MINN. STAT. § 466.02 (2021) (establishing
respondeat superior liability for municipalities, subject to exceptions); Wagstaff v. City of Maplewood,
615 S.W.2d 608, 610 (Mo. Ct. App. 1981) (applying common law respondeat superior liability to a
municipality).
97 Such narrow definitions of respondeat superior liability most frequently occur in litigation of
intentional torts, the most likely predicate for constitutional tort claims. See, e.g., Davis v. Devereux
Found., 37 A.3d 469, 490 (N.J. 2012) (“Only rarely will [an employee’s] intentional torts fall within the
scope of employment.”); Zsigo v. Hurley Med. Ctr., 716 N.W.2d 220, 229 (Mich. 2006) (holding that the
employee of a medical center was not acting within the scope of his employment when he engaged in acts
of sexual misconduct with a patient, and thus medical center was not vicariously liable); Hamed v. Wayne
County, 803 N.W.2d 237, 247 (Mich. 2011) (finding no vicarious liability for an employee’s sexual
misconduct directed toward a prisoner).
98 See Kyle Johnson, A New Frontier for Ending Qualified Immunity: State Civil Rights Acts, 26 PUB.
INT. L. REP. 55, 62–64 (2020) (discussing immunities available to police officers in defense against state
tort claims); Rosenthal, supra note 95, at 805–09 (containing comprehensive summary of state waivers
of immunity for tort suits). As one example, some states offer “official immunity” in tort cases brought
against government officials, which protects against liability so long as the officer acts within the scope
of their duties and without actual malice. Reed v. DeKalb County, 589 S.E.2d 584, 587–88 (Ga. Ct. App.
2003).
99 See John F. Preis, Alternative State Remedies in Constitutional Torts, 40 CONN. L. REV. 723, 749–
60 (2008) (reviewing reasons why state tort law should not be seen as capable of vindicating constitutional
interests); Christina Brooks Whitman, Emphasizing the Constitutional in Constitutional Torts, 72 CHI.KENT L. REV. 661, 686 (1997) (describing state tort law as “particularly ineffective in dealing with
precisely the sorts of interests and injuries that are at the center of constitutional law”); see also Schwartz,
Civil Rights Ecosystems, supra note 5, at 1587–88 (describing how the unavailability of attorneys’ fees
for state tort claims discourages lawyers from relying on such claims).
100 See infra Appendix A, Table A2.

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specific sets of rights, often very narrow. 101 Many of these states have
incorporated federal qualified immunity doctrine as a limit on relief and
make no provision for the award of attorneys’ fees to successful plaintiffs.
That leaves only eight states in which a statutory cause of action exists for
violation of at least some state (and sometimes federal) constitutional
rights.102 Each of these states has an attorneys’ fees provision that provides
for the possibility of fee-shifting for prevailing plaintiffs—a state law
analogue to Section 1988. 103 But many courts in those states have also
imported the same federal law barriers that stand in the way of Section 1983
litigation. 104 In Arkansas, for example, a state statute creating a cause of
action for violation of the state constitution contains a provision directing
courts to interpret the statute in light of federal decisions interpreting Section
1983. 105 The Arkansas Supreme Court has interpreted this provision to
require that it apply federal qualified immunity doctrine to these state law
claims. 106 Courts in Maine, 107 Massachusetts, 108 and New Jersey 109 have
interpreted their state analogues to Section 1983 along similar lines. Until
101 Of the sixteen jurisdictions in which courts have implied a cause of action from the constitution,
fifteen have limited the right to sue to enforce specific constitutional provisions.
102 Arkansas, California, Colorado, Connecticut, Maine, Massachusetts, New Mexico, and New
Jersey. Of these, California, Maine, Massachusetts, and New Jersey all provide a cause of action for
violations of both the state and federal constitutions. But the majority of these states impose limitations
on the kinds of constitutional claims that can be brought.
103 Unlike federal Section 1988, some of the state statutes only permit prevailing plaintiffs to seek
fees and costs. ARK. CODE ANN. § 16-123-105(b) (2021) (making possible an award of fees and costs
where a plaintiff prevails); CAL. CIV. CODE § 52.1(i) (West 2021); MASS. GEN. LAWS ch. 12, § 11I (2021)
(permitting fee-shifting for any “aggrieved person” who prevails); City of Little Rock v. Nelson,
592 S.W.3d 666, 669 (Ark. 2020) (describing the standard used to determine entitlement to fees under
state law); Rodriguez v. County of Los Angeles, 96 F. Supp. 3d 1012, 1016 (C.D. Cal. 2014) (applying
the California state law standard for fees under the Bane Act), aff’d, 891 F.3d 776 (9th Cir. 2018); Norris
v. Murphy, 287 F. Supp. 2d 111, 116 (D. Mass. 2003) (stating that the standard under state law is the
same as under Section 1988). Others use the more general “prevailing party” language, which permits fee
awards for defendants or plaintiffs. See ME. STAT. tit. 5, § 4683 (2021) (permitting fee awards for any
prevailing party other than the State); N.J. STAT. ANN. § 10:6-2 (2021); Szczepanski v. Newcomb Med.
Ctr., Inc., 661 A.2d 1232, 1236–37 (N.J. 1995) (stating that New Jersey courts follow federal standards
in assessing entitlement to fees).
104 See infra Appendix A, Table A2.
105 ARK. CODE ANN. § 16-123-105(c) (2021).
106 See Robinson v. Langdon, 970 S.W.2d 292, 296 (Ark. 1998); see also Faughn v. Kennedy,
590 S.W.3d 188, 194 (Ark. Ct. App. 2019).
107 Clifford v. MaineGeneral Med. Ctr., 91 A.3d 567, 588–89 (Me. 2014). Maine’s Civil Rights
Statute permits private actions for violations of the federal or state constitutions. ME. STAT. tit. 5,
§ 4682(1-A) (2021) (limiting the cause of action to intentional interference with constitutional rights by
physical force or violence or threats of physical force or violence).
108 Duarte v. Healy, 537 N.E.2d 1230, 1232 (Mass. 1989).
109 Lapolla v. County of Union, 157 A.3d 458, 467 (N.J. Super. Ct. App. Div. 2017). New Jersey’s
Civil Rights Act provides for damages for violations of the federal or state constitutions. N.J. STAT. ANN.
§ 10:6-2(c) (2021).

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recently (when Colorado and New Mexico enacted their statutes), California
alone provided a private right of action against state and local officials—but
its cause of action is significantly narrower than Colorado’s and New
Mexico’s, only allowing claims against those who interfere with
constitutional rights through violence or the threat of violence.110 California
state courts have not recognized a qualified immunity defense to liability
under the Act, although California law does include a state law immunity
that covers most actions taken in the course of investigation.111
Our survey thus suggests a somewhat dispiriting conclusion. While
state and local governments have the affirmative power, through their
legislatures, to enact their own tools of civil rights enforcement, this power
has lain largely dormant at both the state and local levels.112 Most states have
failed to enact workable and effective state law analogues to Section 1983
and thus have failed to authorize people to sue as a matter of state law for the
violation of state and federal constitutional rights. And to our knowledge,
only one city (New York City) has created a local analogue to Section
1983.113 One comes away from this summary of state and local developments
with the clear sense that much of the potential for transformative change in
civil rights enforcement at the local level has been as yet unrealized.
B. The Budgetary Institutions of Civil Rights Enforcement
State and local governments can advance—or hinder—civil rights
enforcement not only through independent causes of action but also through
the manner in which they facilitate relief through the budgeting and payment
of awards in these cases. Though seemingly mundane, budgeting and
indemnification rules and decisions often determine whether successful
claimants get paid, where the money to pay them comes from, and in what
110

CAL. CIV. CODE § 52.1(c) (West 2021). Note that the Bane Act has been interpreted to require
officers have specific intent to violate constitutional rights. See Cornell v. City of San Francisco, 17 Cal.
App. 5th 766, 801–02 (Cal. Ct. App. 2017) (holding that an unlawful arrest is actionable under Section
52.1(c) only if an officer had “a specific intent to violate the arrestee’s right to freedom from unreasonable
seizure”); Reese v. County of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018) (interpreting California
case law to the same effect).
111 See Venegas v. County of Los Angeles, 63 Cal. Rptr. 3d 741, 753 (Cal. Ct. App. 2007) (holding
no qualified immunity for state law claims). But see CAL. GOV’T CODE § 821.6 (West 2021).
112 The scope of municipal power to regulate itself and its actors by creating private rights of action
will vary between states, in large part based on the extent of home rule authority granted to municipalities
under state law. See generally Paul A. Diller, The City and the Private Right of Action, 64 STAN. L. REV.
1109, 1129–30 (2012) (describing nine states as skeptical toward the power of cities to fashion rights of
action, twenty-four states as ambiguous, and nine more as permissive). In Michigan, for example,
although the City of Detroit has broad power to enact positive law, the state supreme court held that it
could not create an antidiscrimination cause of action against itself because of state governmental
immunity law. Mack v. City of Detroit, 649 N.W.2d 47, 52–53 (Mich. 2002).
113 See N.Y.C. ADMIN. CODE § 8-803 (2021).

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manner those dollars directly or indirectly impact government behavior and
thereby discourage unlawful conduct in the future. In this Section, we offer
an overview of current budgetary and indemnification arrangements and the
ways in which these arrangements can undermine, or support, the
compensation and deterrence goals that animate civil rights litigation.
Every state has a statute that sets out governments’ defense and
indemnification obligations—their obligations to provide officers with
attorneys when they are sued and pay any settlement or judgment entered
against them. 114 But these state statutes vary widely: some mandate that
governments indemnify state and/or local government officers, while others
give local governments discretion to decide whether to indemnify.115 And
even state statutes that mandate indemnification as a general rule recognize
exceptions for intentional, willful, or wanton conduct; criminal conduct; and
punitive damages awards. 116 State statutes also may limit indemnification
obligations, with state caps ranging from $25,000 to $5,000,000.117 Local
governments craft their own indemnification policies that are consistent with
their state’s statutes. 118 Then, when an officer is sued, local government
officials—city attorneys, usually—determine whether an officer will be
indemnified.119 If, for example, the jurisdiction prohibits indemnification of
willful or wanton misconduct, an official must determine whether the
allegations against the officer meet those criteria.
The state law framework for indemnification has a direct impact on the
compensatory aims of civil rights litigation. Local jurisdictions often satisfy
their officers’ legal liabilities—even when they have discretion to deny
officers indemnification under the terms of their statutes and even,
sometimes, when law or policy prohibits indemnification.120 Nevertheless,
local government attorneys do sometimes exercise their discretion not to
indemnify in ways that leave plaintiffs undercompensated. Local
government officials sometimes threaten not to indemnify their officers for
strategic gain—to reduce potential settlements, reduce potential damages
114 See generally Aaron L. Nielson & Christopher J. Walker, Qualified Immunity and Federalism,
109 GEO. L.J. 229, 268–82 (2020) (describing these indemnification statutes).
115 See id. at 269.
116 See id. at 236. This ban on indemnification matches in some respects the refusal of common law
jurisdictions to impose respondeat superior liability for intentional torts. See supra note 97.
117 See Nielson & Walker, supra note 114, at 278 n.282.
118 See generally Joanna C. Schwartz, Qualified Immunity and Federalism All the Way Down,
109 GEO. L.J. 305, 331–32 (2020) [hereinafter Schwartz, Qualified Immunity and Federalism All the Way
Down] (describing the latitude that local governments have to craft indemnification policies and the many
governmental and nongovernmental actors who may play a role in that process).
119 See id. at 331.
120 These findings are described in detail in Schwartz, Police Indemnification, supra note 4, at 889–
90.

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awards during trial, or reduce jury verdicts after trial.121 And defense counsel
may leverage the possibility that their clients will not be indemnified to
influence the instructions a jury receives or the evidence it hears.122
Local governments sometimes make good on their threats and refuse to
indemnify their officers—meaning that the officer is made personally
responsible to satisfy the entirety of a settlement or judgment entered against
them.123 But even when this occurs, individual defendants rarely need to pull
out their checkbooks. If it becomes obvious that the municipality will not
indemnify, plaintiffs’ attorneys are likely to look elsewhere for deeper
pockets or forgo pursuing litigation further, leaving the plaintiff without
compensation.124
Available evidence from the policing context also suggests that local
government budgeting and indemnification arrangements mute the second
goal of civil rights enforcement: deterrence. Payouts in these cases virtually
never carry a financial sanction for individual officers. And in the case of
constitutional violations committed by local police officers, they rarely carry
much in the way of financial consequences for law enforcement agencies,
either. Agencies are sometimes required to contribute in some manner to the
payment of settlements and judgments against their officers. 125 But these
budgeting arrangements do not predictably translate into tangible financial
effects.126
Even though payments in civil rights suits rarely have a direct financial
effect on the officers named in the cases or the police departments that
employ them, they could nevertheless impact officer and department
behavior if the information in these suits was gathered and analyzed for
personnel and policy lessons that would reduce the likelihood of future
harms. 127 Municipal liability insurers appear to perform this type of
analysis—smaller jurisdictions that purchase insurance or participate in
government risk pools report that the insurers and pools may demand
changes in personnel and policies as a condition of continued coverage;

121

See id. at 931–36.
See id. at 933–34.
123 See Schwartz, Qualified Immunity and Federalism All the Way Down, supra note 118, at 333–34.
124 See id. at 334.
125 See generally Schwartz, How Governments Pay, supra note 4, at 1184–87 (discussing
“jurisdictions that require their law enforcement agencies to contribute to jurisdiction-wide risk
management funds”).
126 See id. at 1193.
127 See generally Joanna C. Schwartz, What Police Learn from Lawsuits, 33 CARDOZO L. REV. 841,
860–61 (2012) [hereinafter Schwartz, What Police Learn from Lawsuits] (explaining that law
enforcement agencies that gather and analyze litigation data have used these data to inform personnel and
policy decisions and improve officer behavior).
122

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departments that do not comply have lost coverage and ceased to exist.128 But
law enforcement agencies in self-insured jurisdictions rarely make efforts to
learn from the lawsuits brought against them and their officers. 129 When
lawsuits are filed, the city or county attorney will defend the case, the money
to satisfy any settlement or judgment will be paid out of the city’s general
budget, and the vast majority of departments will not keep track of which
officers were named, what claims were alleged, what evidence was
unearthed during discovery, what resolution was reached in the case, or what
amount was paid.130 As a result, law enforcement agencies do not typically
rely on information about case filings or the information revealed in the
course of litigation when making policy choices, or when deciding whether
to discipline their officers.131
C. The Litigation Practices of Local Law Departments
As we saw with the efforts of some local governments to leverage their
indemnity authority to secure concessions or settlements, the manner in
which local governments choose to mount legal defenses to liability has a
significant impact on the success of civil rights litigation. Many of the
doctrines that the Supreme Court has developed to qualify or restrict
recovery operate as profound barriers to just outcomes. Yet these barriers to
effective remediation enter litigation only when the local government
defendants present them to the courts for consideration. 132 Government
lawyers sometimes avail themselves of these defenses, arguing against
municipal or individual liability or mounting interlocutory appeals, even in
defense of substantial claims. 133 In this Section, we sketch the role legal
representation plays in the ecosystems of local civil rights enforcement.
128

See John Rappaport, How Private Insurers Regulate Public Police, 130 HARV. L. REV. 1539,
1573–91 (2017); Schwartz, How Governments Pay, supra note 4, at 1189–92.
129 These findings are described in detail in Joanna C. Schwartz, Myths and Mechanics of
Deterrence: The Role of Lawsuits in Law Enforcement Decisionmaking, 57 UCLA L. REV. 1023, 1057–
60 (2010) [hereinafter Schwartz, Myths and Mechanics of Deterrence].
130 See id. at 1028.
131 See id. at 1064–66.
132 Immunities, both qualified and absolute, are affirmative defenses that have to be raised by
defendants to be considered by courts. See Reinert, Qualified Immunity at Trial, supra note 4, at 2069–
72 (describing qualified immunity as affirmative defense and varying approaches to allocating burdens);
Chestnut v. City of Lowell, 305 F.3d 18, 22 (1st Cir. 2002) (Torruella, J., concurring) (collecting cases
from courts of appeals for the proposition that absolute and qualified immunity can be forfeited or waived
if not presented).
133 Much has been written about the role of affirmative litigators in city, state, and federal law
departments. This is an important area of focus, especially as the priorities of affirmative litigation
bureaus shifts with changes in administration. See, e.g., Margaret H. Lemos, Democratic Enforcement?
Accountability and Independence for the Litigation State, 102 CORNELL L. REV. 929, 973–74 (2017)

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When individual officers are sued under Section 1983, they are
routinely represented by attorneys in city law departments or state attorney
general offices.134 These attorneys also represent government agencies and
entities, and the same attorney often will represent both individual
defendants and municipalities in Section 1983 litigation.135 These attorneys
regularly use both qualified immunity and Monell standards to defend
against Section 1983 claims. Empirical evidence is sparse, but one of us
found that qualified immunity was raised in about one-third of a large sample
of Section 1983 cases brought against law enforcement officers, and is
sometimes raised multiple times in motions to dismiss, for summary
judgment, and for directed verdict.136 To our knowledge, there has been no
empirical study of the frequency that attorneys make arguments based on

(describing the partisan swings that accompany state-sponsored litigation). But other than work regarding
high-visibility decisions to defend (or not) particular laws from constitutional challenge, the role of
defensive bureaus and the lawyers who staff them has been underexamined. See, e.g., Sanford Levinson,
Identifying the Compelling State Interest: On “Due Process of Lawmaking” and the Professional
Responsibility of the Public Lawyer, 45 HASTINGS L.J. 1035, 1052 (1994) (providing the example of the
U.S. Department of Justice’s decision not to defend the constitutionality of the Public Broadcasting Act
of 1967); Daniel J. Meltzer, Executive Defense of Congressional Acts, 61 DUKE L.J. 1183, 1187 (2012)
(questioning “a regime in which each administration views itself as having significant latitude to refuse
to enforce and defend acts of Congress”); Katherine Shaw, Constitutional Nondefense in the States,
114 COLUM. L. REV. 213, 215–16 (2014) (contrasting “robust scholarly debate” about role of federal
Executive in declining to defend statutes it deems unconstitutional with lack of scholarly attention to
similar decisions by state executives); see also Carlos A. Ball, When May a President Refuse to Defend
a Statute? The Obama Administration and DOMA, 106 NW. U. L. REV. COLLOQUY 77, 77 n.1 (2011)
(providing examples of the federal government’s refusal to defend laws the Executive Branch deemed
unconstitutional); Charles Fried, The Solicitor General’s Office, Tradition, and Conviction, 81 FORDHAM
L. REV. 549, 549 (2012) (criticizing the Obama Administration’s decision to abandon the defense of the
Defense of Marriage Act (DOMA)). One of us has written about defensive agenda setting in the context
of the federal government. See Alexander A. Reinert, The Influence of Government Defenders on
Affirmative Civil Rights Enforcement, 86 FORDHAM L. REV. 2181, 2183–88 (2018).
134 Where conflicts arise, this representation is often contracted out to members of the private bar at
public expense. See, e.g., GA. CODE ANN. § 45-9-21(e)(2) (2021) (“[T]he county officer shall be
authorized to employ individual legal counsel to represent such county officer . . . .”); ME. STAT. tit.14,
§ 8112(2-A) (2021) (“If the defense of its employee creates a conflict of interest between the
governmental entity and the employee, the governmental entity shall pay the reasonable attorneys’
fees . . . .”); N.Y. PUB. OFF. LAW § 18(3)(b) (McKinney 2021) (“[T]he employee shall be entitled to be
represented by private counsel . . . whenever the chief legal officer of the public entity . . . determines that
a conflict of interest exists . . . .”).
135 Some conflicts of interest can arise if there is tension between the municipality’s Monell
arguments and the individual defendant’s qualified immunity defense. See Dina Mishra, When the
Interests of Municipalities and Their Officials Diverge: Municipal Dual Representation and Conflicts of
Interest in § 1983 Litigation, 119 YALE L.J. 86, 109–17 (2009); Nicole G. Tell, Representing Police
Officers and Municipalities: A Conflict of Interest for a Municipal Attorney in a § 1983 Police
Misconduct Suit, 65 FORDHAM L. REV. 2825, 2827–28 (1997).
136 See Joanna C. Schwartz, How Qualified Immunity Fails, 127 YALE L.J. 2, 27–33 (2017)
[hereinafter Schwartz, How Qualified Immunity Fails].

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Monell’s limits on entity liability, but anecdotal experience suggests that
attorneys frequently invoke them.
Government defense attorneys can also elect to immediately appeal
from a decision rejecting a proffered qualified immunity defense, delaying
proceedings for a year or more. 137 There is no barrier to taking multiple
appeals of a qualified immunity denial, once at the motion to dismiss stage,
again at summary judgment, and once again in the rare event of a trial that
results in a judgment for the plaintiff.138 Indeed, even if a defendant prevails
on the question of qualified immunity, they may take an appeal if the district
court also found that the defendant’s conduct violated the Constitution but
did not violate clearly established law.139
By all available accounts, defendants make regular use of their power
to take interlocutory appeals. One of us found that defendants immediately
appealed more than one in five qualified immunity motions that were denied
in whole or part.140 Another of us has shown that, of all appellate decisions
involving qualified immunity between 2005 and 2015, about 40% were from
denials of qualified immunity at the motion to dismiss or summary judgment
stage.141
III. A PROPOSAL FOR ENHANCED STATE AND LOCAL CIVIL
RIGHTS ENFORCEMENT
As described in Part II, state and local governments have taken only
modest steps to provide statutory alternatives to the troubled framework of
Section 1983. In addition, local officials contribute actively to an ecosystem
of civil rights enforcement that can either undermine or further the
compensatory and deterrence goals of civil rights litigation. For state and
local governments interested in restoring the promise of civil rights
enforcement, we offer three strategies. First, state and local legislatures can
enact a statutory analogue to Section 1983 that does not allow a qualified
immunity defense, imposes vicarious liability, and mandates
indemnification. A recently passed Colorado statute, which we describe,
offers a blueprint for this type of law. We also offer model statutory
language—drawn from several proposed state statutes—in Appendix B.

See Schwartz, Qualified Immunity’s Selection Effects, supra note 62, at 1121–22.
For the approval of serial appeals from the denial of qualified immunity defenses, see Behrens v.
Pelletier, 516 U.S. 299, 311–13 (1996).
139 Camreta v. Greene, 563 U.S. 692, 706–08 (2011).
140 See Schwartz, How Qualified Immunity Fails, supra note 136, at 40.
141 Alexander A. Reinert, Qualified Immunity on Appeal: An Empirical Assessment 22 tbl.1 (Cardozo
L. Jacob Burns Inst. for Advanced Legal Stud., Faculty Research Paper No. 634, 2021),
https://papers.ssrn.com/a=3798024 [https://perma.cc/HSD3-BUZD].
137
138

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Second, state and local governments can structure budgeting, oversight, and
risk management in ways that encourage local governments to learn from
lawsuits brought against them and thereby better advance the deterrence
goals of civil rights litigation. Third, city and county attorneys can also
advance the goals of civil rights litigation by making more thoughtful use of
qualified immunity and municipal liability protections in litigation.
A. A State Law Analogue to Section 1983
Whatever steps are taken at the federal level to reform or eliminate the
doctrines of qualified immunity and the limitations on municipal liability,
any state can enact a state law analogue to Section 1983 that allows people
to bring an action under state law for the violation of their state or federal
constitutional rights, forgoes the limitations on relief created by the Supreme
Court, and additionally ensures that people whose rights were violated in fact
recover for their losses.142 Such a statute would have several components. In
addition to a state law cause of action, the statute should make clear that
qualified immunity is not a defense to liability.143 The statute should also
impose vicarious liability on local governments for wrongs committed by
their officers, instead of requiring plaintiffs to meet the challenging Monell
standard. In our view, a model state statute would additionally include an

142

Our proposal is different from prior suggestions that plaintiffs should pursue Section 1983
litigation in state courts as an avoidance mechanism for the hostility of federal courts. Such actions, even
when heard in state court, are subject to the same common law immunities and defenses that would apply
in federal court. See Susan N. Herman, Beyond Parity: Section 1983 and the State Courts, 54 BROOK. L.
REV. 1057, 1079 (1989). Our proposal is also distinct from Akhil Reed Amar’s suggestion, long ago, that
states create “converse” Section 1983 statutes that would provide a damages remedy where federal actors
violate the Constitution. See, e.g., Amar, supra note 32, at 1428 n.15 (using “converse-1983” to refer to
any statute that would invert Section 1983); Akhil Reed Amar, Using State Law to Protect Federal
Constitutional Rights: Some Questions and Answers About Converse-1983, 64 U. COLO. L. REV. 159,
160 (1993) (labeling laws designed to provide a remedy for violations of federal constitutional rights
committed by federal officials “converse-1983”); Akhil Reed Amar, Five Views of Federalism:
“Converse-1983” in Context, 47 VAND. L. REV. 1229, 1230 (1994) [hereinafter Amar, Five Views of
Federalism] (advocating for adoption of “converse-1983” statutes). We focus on what state and local
officials can do to enhance accountability of their own actors and entities, not how they can enhance
accountability of federal officials.
143 Some legislators have crafted statutes that limit, instead of eliminate, qualified immunity. For
example, Washington’s proposed statute, House Bill 1202, provided:
A peace officer has a defense against an action . . . if, when the injury occurred, the officer
substantially complied with a regulation, practice, procedure, or policy that was established by
the employer or approved or condoned by superior officers. If the peace officer proves this
defense, the employer is independently liable for the injury if the injury was proximately caused
by a regulation, custom, usage, practice, procedure, or policy approved or condoned by the
employer.
H.B. 1202, 67th Leg., 2021 Reg. Sess. § 3(3) (Wash. 2021). Those interested in modifying qualified
immunity without eliminating it outright could adopt this type of language.

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analogue to Section 1988, allowing fee-shifting for prevailing plaintiffs, to
encourage attorneys to bring these cases.
Finally, a model statute would mandate that officers are indemnified,
so that plaintiffs can be assured compensation for their losses. California’s
statute—along with statutes in several other states—has this type of broad
indemnification provision and could be emulated by states with fartherreaching limitations on indemnification. 144 By adopting the California
model, states would foreclose the argument that individual officers have
acted so egregiously as to fall within an exception in indemnification
coverage. 145 Mandating indemnification would also prevent government
attorneys from using the threat that they will deny indemnification
strategically, to reduce plaintiffs’ awards. State statutes should also prohibit
indemnification caps if they wish to ensure plaintiffs are fully compensated.
In the months after George Floyd’s killing, several state legislatures
considered draft statutes that included some or all of these components.146
While most have not adopted legislation, Colorado enacted a law in 2020
that achieves almost all of these goals. It provides a private right of action
for violations of state constitutional law by Colorado law enforcement
officers and specifically prohibits the use of qualified immunity and state
statutory immunities as defenses to claims brought under the section.147 The
statute provides attorneys’ fees for prevailing plaintiffs. 148 The statute
requires that local governments indemnify their officers unless they are
convicted of a crime and also requires that local governments require their
officers to contribute the lesser of 5% of the settlement or judgment or
$25,000 if they are found by their employer to have acted in bad faith.149 No
other state legislatures seem to have considered this type of indemnification
clause with a contribution requirement for bad faith actors. But other states—
including California, Kansas, Massachusetts, New Mexico, New York,
Rhode Island, Texas, Virginia, and Washington—have considered creating
Note that California’s statute does require that an employee cooperate in the defense of the case
as a condition of indemnification and allows but does not require indemnification of punitive damages
awards. CAL. GOV’T CODE § 825(a) (West 2021). For a discussion of the states with no indemnification
exceptions, see Nielson & Walker, supra note 114, at 272–74 & nn.248–49.
145 See, e.g., Ott v. City of Mobile, 169 F. Supp. 2d 1301, 1316 (S.D. Ala. 2001) (addressing the
city’s argument that it should not be liable for officer’s conduct because it was “intentional or wanton”).
146 See supra notes 9–10 (describing some of these state legislative proposals).
147 COLO. REV. STAT. § 13-21-131 (2021). The statute only applies to a “peace officer” employed by
a “local government,” thereby excluding state law enforcement personnel and many other categories of
state and local officials. Id.
148 Id. § 13-21-131(3) (permitting plaintiffs to recover fees as prevailing parties, including if they are
a “catalyst” for change, and defendants to recover for defending against any claim deemed “frivolous”).
149 If the officer shows that they do not have the resources to make this payment, the city will bear
the entirety of the financial obligation. Id. § 13-21-131(4).
144

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a state law cause of action for constitutional violations that require the
employer to indemnify.150
Overall, we endorse Colorado’s approach but offer a few design choices
for state legislatures to consider. The first choice is a question of which
officials any such law would cover. Colorado’s statute is limited to
unconstitutional conduct by law enforcement officials. But Section 1983 has
no such limitation, and states could decide to expand liability to other types
of government officials as well. Most states that have created a statutory
cause of action have provided broader coverage, encompassing all persons
acting under color of state law.151 Limiting the reach of such a statute to law
enforcement might be considered responsive to the social movements that
have focused attention on policing.152 But in our view, broader coverage is
more consistent with the overall goals of civil rights enforcement and
eliminates difficult interpretive questions regarding who is a law
enforcement officer.153
A second choice relates to which rights to enforce. The Colorado statute
is limited to violations of state constitutional law. Some other statutes are
limited to vindicating constitutional rights in specific contexts.154 But we see
no reason why state lawmakers cannot create a cause of action for the
150 See supra note 10. Note that California is among the states that already provides a state law cause
of action for some constitutional violations—the statute proposed and defeated in California would have
expanded the cause of action to include all violations of state constitutional law.
151 See, e.g., ARK. CODE ANN. § 16-123-105(a) (2021) (“Every person who, under color of any
statute . . . shall be liable . . . .” (emphasis added)); CAL. CIV. CODE § 52.1(b) (West 2021) (asserting that
injunctive relief is available when a “person” threatens another individual’s rights secured by the U.S. or
California Constitution); ME. STAT. tit. 5, § 4682(1-A) (2021) (asserting that private action can be taken
“[w]henever any person” interferes with another’s constitutional rights); MASS. GEN. LAWS Ch. 12, § 11H
(2021) (asserting that civil action for injunctive relief can be taken “[w]henever any person” interferes
with another’s constitutional rights); N.J. STAT. ANN. § 10:6-2(a) (asserting that civil action for injunctive
relief can be taken when “a person” interferes with another’s constitutional rights); New Mexico Civil
Rights Act, H.B. 4, 55th Leg., 2021 Reg. Sess. § 3 (N.M. 2021) (asserting that civil action for injunctive
relief can be taken when “[a] public body or person” interferes with another’s constitutional rights).
152 Limitations on which government officials can be named as defendants—or an incremental
approach, by which the statute can be amended to add additional government officials as possible
defendants over time—might also be more palatable to those concerned that expanding liability for all
constitutional violations would have severe fiscal consequences, an objection we discuss below. See infra
Section IV.A.
153 For example, depending on how the term is defined, corrections officers may be excluded. The
meaning of the “law enforcement” proviso to the intentional tort provisions of the Federal Tort Claims
Act has been anything but self-evident. See, e.g., Iverson v. United States, 973 F.3d 843, 849–50 (8th Cir.
2020) (discussing whether TSA screeners qualify as law enforcement officers for purposes of triggering
government’s vicarious liability for intentional torts under the FTCA).
154 See, e.g., CAL. CIV. CODE § 52.1(b) (West 2021) (limiting the cause of action to interference with
constitutional rights through “threat, intimidation, or coercion”); ME. STAT. tit. 5, § 4682(1-A) (2021)
(limiting the cause of action to intentional interference with constitutional rights by physical force or
violence or threats of physical force or violence).

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violation of state and federal constitutional rights. As a matter of federalism,
states and state courts have long been responsible for enforcing federal
norms.155 State legislative power is presumptively broad, so long as they do
not transgress constitutional boundaries, and states already adopt laws that
facilitate the effectuation of federal law.156 And while only a few states have
enacted statutes akin to the one we propose here, most provide for
enforcement of both federal and state constitutional rights. 157 There is no
sound federalism-based reason that would bar states from enforcing federal
constitutional guarantees more stringently than Congress has.
We also believe there are several overlapping reasons for supporting a
state-created affirmative right to sue for violations of both the state and
federal constitutions. First, doing so would likely give litigants the option of
litigating such claims in state or federal court because such claims could
“arise under” federal law within the meaning of 28 U.S.C. § 1331.158 Second,
a state law cause of action for violations of the federal Constitution—and no
qualified immunity defense—would increase the opportunities for federal
155

Indeed, the Judiciary Act of 1789 did not confer general federal question subject matter
jurisdiction on lower federal courts, giving state courts primary jurisdiction over many original disputes
arising out of federal law until the precursor to 28 U.S.C. § 1331 was enacted in 1875. See RICHARD H.
FALLON, JR., JOHN F. MANNING, DANIEL J. MELTZER & DAVID L. SHAPIRO, HART & WECHSLER’S THE
FEDERAL COURTS AND THE FEDERAL SYSTEM 22, 28 (7th ed. 2015).
156 Thus, the National Conference of State Legislatures reports that some twenty states have adopted
state laws that helped to secure the enforcement of Affordable Care Act (ACA) provisions. See NAT’L
CONF. STATE LEGISLATURES, LEGAL CASES AND STATE LEGISLATIVE ACTIONS RELATED TO THE ACA
(June 29, 2021), https://www.ncsl.org/research/health/state-laws-and-actions-challenging-ppaca.aspx
[https://perma.cc/7A8V-BXCC] (reporting that twenty states have codified ACA consumer protections
by guaranteeing health coverage for individuals with preexisting conditions, prohibiting insurers from
varying premium rates based on an enrollee’s health-status and requiring coverage for the ten essential
health benefits).
157 Of the eight states that have enacted causes of action to enforce constitutional rights, four have
authorized enforcement of both the state and federal constitutions. See infra Appendix A, Table A2.
158 We base this conclusion on Grable & Sons Metal Products, Inc. v. Darue Engineering &
Manufacturing, 545 U.S. 308, 313–14 (2005), which holds that state-created causes of action can “arise
under” federal law within the meaning of 28 U.S.C. § 1331 where the cause of action requires resolution
of a disputed and substantial federal issue, without departing from the congressionally approved balance
of power between state and federal courts. Some federal courts have exercised original jurisdiction on
this theory over state law claims for violations of the federal constitution. See, e.g., Warren v. Mgmt. &
Training Corp., No. 16-cv-849, 2016 WL 8730711, at *4 (E.D. Cal. Aug. 5, 2016) (finding that a federal
court had subject matter jurisdiction over a state law Bane Act claim because it alleged violations of the
federal Constitution and so was “arising under” the Constitution within the meaning of 28 U.S.C. § 1331);
Ortiz v. Univ. of Med. & Dentistry of N.J., No. 08-2669, 2009 WL 737046, *9–10 (D.N.J. Mar. 18, 2009)
(holding that removal under New Jersey Civil Rights Act was proper because the cause of action arose
under federal law by seeking relief for violations of the federal Constitution); Therrien v. Hamilton, 881 F.
Supp. 76, 79 (D. Mass. 1995) (same in context of Massachusetts Civil Rights Act). The fact that Congress
has already authorized suits for federal constitutional violations under Section 1983 suggests that allowing
federal jurisdiction over similar claims brought under state law analogues would not disrupt Congress’s
allocation of power between state and federal courts.

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and state courts to announce clear interpretations of federal constitutional
rights.159 This would help solve the constitutional stagnation problem caused
by the Supreme Court’s current Section 1983 jurisprudence. And finally,
because as a historical matter there has been very little elaboration of state
constitutional law in the context of affirmative civil rights claims, 160 state
courts interpreting the new statute could benefit from having a body of
familiar federal law to apply in tandem with less developed state
constitutional law.
A third design choice relates to how to allocate financial liability for
constitutional violations—should the statute institute both vicarious liability
and certain indemnification, or just one of the two? Colorado’s statute takes
a novel approach, described above. It requires indemnification in all cases
unless the defendants are convicted of a crime.161 Certain indemnification
ensures that injured parties are fully compensated and that the threat of
indemnification denials cannot be used strategically. Another way to ensure
compensation, either as an alternative or in tandem with certain
indemnification, is to provide for vicarious entity liability for states and
municipalities whose employees violate the state or federal constitution. To
do this, state legislatures would do well to make respondeat superior liability
explicit in any statute, thereby precluding courts from importing Section
1983’s Monell construct into state law. In so doing, state legislatures also
would have to make clear any intent to waive sovereign immunity of state
entities for this liability.162 As a functional matter this will have the same
159 See, e.g., Ann Althouse, How to Build a Separate Sphere: Federal Courts and State Power,
100 HARV. L. REV. 1485, 1505 n.116 (1987) (discussing the value that “unauthoritative” state court
decisions can play in informing federal law); Robert A. Schapiro, Polyphonic Federalism: State
Constitutions in the Federal Courts, 87 CALIF. L. REV. 1409, 1467 (1999) (noting that “territorial or
systemic boundaries need not disqualify a court from making a valuable contribution to the ongoing
interpretive exercise”); David L. Shapiro, Federal Diversity Jurisdiction: A Survey and a Proposal,
91 HARV. L. REV. 317, 325 (1977) (surveying federal diversity cases and noting their “arguably useful
contributions” to development of state law).
160 To be clear, we would welcome state development of distinct interpretations of their
constitutional protections. But, other than for interpretations of state constitutional analogues to the Fourth
Amendment, state courts have generally been guided by federal law when interpreting their own
constitutions. See generally James A. Gardner, The Failed Discourse of State Constitutionalism,
90 MICH. L. REV. 761, 796–98 (1992) (discussing state constitution jurisprudence around Fourth
Amendment analogues).
161 If an officer acted in bad faith, they must contribute the lesser of 5% of any judgment or settlement
or $25,000 and will be indemnified for the rest. COLO. REV. STAT. § 13-21-131(4) (2021).
162 States would have to specifically waive sovereign immunity for actions brought in both federal
and state court; a waiver for state court purposes does not ordinarily waive immunity in federal courts.
See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242–43 (1985); Big Horn Cnty. Elec. Coop., Inc.
v. Adams, 219 F.3d 944, 955 (9th Cir. 2000). Municipalities cannot claim the benefit of sovereign
immunity in federal court. See, e.g., Lincoln County v. Luning, 133 U.S. 529, 530 (1890) (holding that

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effect as certain indemnification. But making clear the entity’s responsibility
for the tortious conduct of its employees might simplify litigation and also
help shift discourse away from a “bad apples” narrative toward an
appreciation of the systemic nature of unconstitutional conduct.
Rather than bar indemnification whenever an officer is found criminally
liable, we endorse Colorado’s provision that officers found to have acted in
bad faith must pay 5% or $25,000 toward any settlement or judgment—
whichever is less—unless they do not have the financial means to make the
payment (in which case the jurisdiction will pay the entirety of the award).
Barring indemnification entirely for officials who are convicted of a crime
may prevent compensation in some of the most egregious cases of official
misconduct and also may create perverse incentives not to report or
prosecute crimes. Nonetheless, we endorse the creation of some means of
financial or other pressure on police officers and departments when litigation
reveals wrongdoing. Colorado’s limited indemnification for bad faith
conduct is one way of mandating this type of sanction. As we describe in the
next Section, local governments can also achieve similar results through
local indemnification policies and rules and practices that facilitate learning
from litigation.
State lawmakers seeking to craft a state law analogue to Section 1983
will face a range of additional questions. For those who wish to provide
victims with access to counsel by the payment of attorneys’ fees to successful
claimants, lawmakers must define what it means to prevail. Some may
choose to follow Colorado in making clear that the Supreme Court’s
restrictive definition of prevailing parties in Buckhannon would not apply.163
States may also wish to consider, as part of a package of statutory
reforms, the inclusion of a state analogue to the federal statute that authorizes
the Department of Justice to institute litigation to address systemic problems
in local police departments. 164 Hampered by limited budgets and political
will, the DOJ’s structural reform program under 42 U.S.C. § 14141 had fully
investigated only some fifty-five departments nationwide (out of about

Eleventh Amendment limits on suits against states do not extend to counties). But in some states it might
be necessary to take specific steps to overcome local governmental immunity for claims brought in state
court.
163 The attorneys’ fees provision includes entitlement to fees for plaintiffs who, via litigation, are a
“catalyst” for change. COLO. REV. STAT. § 13-21-131(3) (2021). Adoption of the catalyst theory is in
contrast to the Supreme Court’s rejection of that theory in federal civil rights litigation. See Buckhannon
Bd. & Care Home, Inc., v. W. Va. Dep’t of Health & Hum. Res., 532 U.S. 598, 610 (2001).
164 See 34 U.S.C. § 12601. Washington State’s proposed statute, House Bill 1202, included this type
of provision, and we have incorporated its language into our model statute. See H.B. 1202, 67th Leg.,
2021 Reg. Sess. § 5 (Wash. 2021); infra Appendix B.

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18,000) by 2013.165 Some of these investigations resulted in court-supervised
consent decrees with the potential to effect significant systemic change.166
Such reform efforts disappeared entirely under the Trump Administration.167
In an effort to fill the gap, state attorneys general in Illinois and New York
have instituted reform measures of their own, modeled to some extent on
past federal practice.168 But doubts have been expressed as to the wisdom and
viability of such litigation, especially in the absence of any formal statutory
authorization.169 States may wish more explicitly to grant their statewide law
enforcement officers the authority to conduct these types of investigations,
perhaps in cooperation with the DOJ.170 Such statutes would enable states to
counter partisan swings in federal administrative oversight.
Lawmakers interested in creating a state cause of action will need to
consider whether and how to address each of these components of state law.
Legislators will also need to consider how, precisely, to craft statutory
language to achieve each of these goals. In Appendix B, we offer a model
state statute that includes proposed language addressing each of these
components.
B. Budgeting, Accountability, and Risk Management
Creating new causes of action and determining what limitations to
apply to those causes of action will undoubtedly impact the frequency and
success of constitutional litigation. But no matter how significantly state and
local legislatures expand rights to sue under state law, the damages awarded

165 See Stephen Rushin, Federal Enforcement of Police Reform, 82 FORDHAM L. REV. 3189, 3232
(2014) (reporting that the DOJ conducted fifty-five investigations from the statute’s inception through
2013, resulting in twenty-two negotiated settlements and only twelve appointed monitors).
166 In New Orleans, for instance, a 2013 consent decree has been credited with reducing police
excessive use of force and improving community relations without undermining criminal law
enforcement. See Patrik Jonsson, How New Orleans Police Went from ‘Most Corrupt’ to Model Force,
CHRISTIAN SCI. MONITOR (Feb. 26, 2019), https://www.csmonitor.com/USA/Justice/2019/0226/HowNew-Orleans-police-went-from-most-corrupt-to-model-force [https://perma.cc/68JS-SHJX].
167 See Rushin, supra note 38, at 1.
168 For an account of the Illinois initiative and a somewhat skeptical assessment of the role of state
officials in initiating such efforts, see Jason Mazzone & Stephen Rushin, State Attorneys General as
Agents of Police Reform, 69 DUKE L.J. 999, 1030–33 (2020). On the initiation of such an effort in New
York, see Ashley Southall, N.Y. Attorney General Sues N.Y.P.D. over Protests and Demands Monitor,
N.Y. TIMES (June 28, 2021), https://www.nytimes.com/2021/01/14/nyregion/nypd-police-protestlawsuit.html [https://perma.cc/GAZ4-7REN].
169 See Mazzone & Rushin, supra note 168, at 1044–67 (expressing doubts as to the viability of state
attorney general reliance on common law modes of police-department oversight and urging the adoption
of statutory authorization).
170 See Samuel Walker & Morgan Macdonald, An Alternative Remedy for Police Misconduct: A
Model State “Pattern or Practice” Statute, 19 GEO. MASON U. C.R.L.J. 479, 481–82 (2009) (making
such a proposal).

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in these cases are only the first step. Mandating indemnification via statute
will ensure that damages are ultimately paid, but these payments can deter
future violations only if there is an infrastructure that will translate
governmental liability into consequences for officers and local government
policymakers. In this Section, we sketch out several possible ways to create
financial or nonfinancial pressures on officers and departments to improve,
and we offer some tentative thoughts about their prospects for success.
1. Financial Sanctions for Officers
Paying plaintiffs from local government coffers does not preclude
officers from being financially sanctioned when they engage in wrongdoing.
Colorado’s recently enacted law, described above, offers one template: it
creates a limited contribution obligation for officers who act in bad faith
while simultaneously ensuring that people whose rights have been violated
will be compensated for their losses. 171 This imposes some financial
consequence on an officer who has engaged in intentional wrongdoing, while
also addressing the concern that officers will be financially sanctioned for
settlements and judgments when they have done nothing wrong. It does so
without exposing officers to debilitating degrees of personal liability because
it excuses officers from any obligation to contribute to a settlement or
judgment if they do not have the financial means to make the payment. In
these ways, the Colorado statute is a better alternative to the all-or-nothing
indemnification approach adopted by most states. The indemnification
provision in Colorado’s statute is a novel approach to imposing some—but
not overwhelming—costs on officers if they have acted in bad faith.
Even without a formal change in state indemnification laws, local
government officials can require officers to contribute to settlements and
judgments entered against them as a condition of indemnification for the
remainder of the award. For example, a study of police indemnification
practices by one of us revealed two agencies—Cleveland and New York
City—that required officers to personally contribute to settlements or
judgments during the six-year study period: thirty-four cases (out of 6,887)
in New York City and two (out of thirty-five) in Cleveland. These officers
were not denied indemnification entirely. Instead, they were required to
make limited contributions to settlements in cases in which the department
found that the officers violated policy.172 It is debatable whether officers in
these jurisdictions should have been required to contribute more money, or
contribute more often. But this type of required contribution ensures that
171

See supra notes 147–149 and accompanying text.
Their contributions ranged from $250 to $25,000, with a median contribution of $2,000. See
Schwartz, Police Indemnification, supra note 4, at 912–15.
172

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plaintiffs whose rights have been violated will be made whole, while creating
a financial sanction for officers found to have violated policy.
A final approach that has been considered but has yet to be adopted is
a requirement that police officers carry professional liability insurance. A
Minneapolis group called the Committee for Professional Policing pushed
for a ballot measure that would have required police officers to carry
professional liability insurance, but it did not go on the ballot because it was
found to conflict with the state’s indemnification statute.173 Deborah Ramirez
has advocated that more state and local governments adopt this approach,
which would allow plaintiffs to recover damages (from the insurer) when
their rights have been violated and would create financial consequences for
the officer (in the form of increased premiums) moving forward.174
2. Financial Sanctions for Departments
Local governments could also endeavor to place the financial
consequences of civil rights lawsuits more squarely on the agency
employer—requiring departments to pay settlements and judgments or
insurance premiums directly from their budgets—as a way of encouraging
better behavior. As described above, some local governments already require
that police departments pay these costs from their budgets. 175 But the
complexities of local government budgeting suggest that even when dollars
paid to resolve settlements and judgments are formally taken from police
department budgets, those dollars paid may not actually have much impact
on the department’s bottom line—more money can simply be moved by the
local government into the police department’s budget to address any
shortfall. And it is uncertain how much deterrent effect these payments can
realistically have, given that they are usually just a small fraction of the
department’s resources.
Nevertheless, requiring police departments to pay settlements and
judgments from their budgets may focus policymaking officials on the
173 Emma Nelson, Minnesota Supreme Court Upholds Minneapolis Decision on Police Insurance
Ballot Measure, STAR TRIB. (Mar. 15, 2017, 10:08 PM), https://www.startribune.com/minnesotasupreme-court-upholds-minneapolis-decision-on-police-insurance-ballot-measure/416277194/ [https://
perma.cc/J5CB-7ACH].
174 See, e.g., Liability Insurance Could Hold ‘Reckless’ Police Officers Accountable, NPR (June 7,
2020, 5:57 PM), https://www.npr.org/2020/06/07/871751070/liability-insurance-could-hold-recklesspolice-officers-accountable [https://perma.cc/KW55-6A3F] (interviewing Ramirez on her belief that
personal liability insurance could be mandatory for police officers); Deborah Ramirez, Marcus Wraight,
Lauren Kilmister & Carly Perkins, Policing the Police: Could Mandatory Professional Liability
Insurance for Officers Provide a New Accountability Model?, 45 AM. J. CRIM. L. 407, 436–38 (2019)
(detailing the belief that mandatory professional liability insurance can be a potential solution). For an
earlier iteration of this idea, see Noel Otu, The Police Service and Liability Insurance: Responsible
Policing, 8 INT’L J. POLICE SCI. & MGMT. 294, 309–10 (2006).
175 See supra notes 125–126 and accompanying text.

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financial consequences of their policy, procedure, supervision, and staffing
choices. When one of us interviewed officials in departments where lawsuit
payouts impact their budgets, several reported that those payouts influence
their behavior and that of other supervisory personnel. As an official at the
California Highway Patrol explained: “We are always getting feedback on
what happens on the street and we know that we are going to feel it in our
budget if we don’t.”176 None of the officials indicated that imposing these
types of financial pressures on law enforcement agencies negatively
impacted their work. More local governments could experiment with this
approach and assess its impact.
In smaller jurisdictions reliant on municipal liability insurance, insurers
already create financial incentives for local governments to reduce the
frequency and severity of constitutional claims. But municipal liability
insurers could play an even more significant role in creating financial
incentives for police departments and local governments to reduce
misconduct. John Rappaport has suggested, for example, that insurance
regulators require insurers to impose a deductible on cities so that they bear
some financial responsibility for their losses. 177 Cities could require that
those deductibles be paid from police department budgets to create the kinds
of financial pressures for departments described above.
3. Nonfinancial Effects of Lawsuits
There are other possible avenues to increase the relationship between
civil rights lawsuits and governmental conduct that do not involve financial
sanctions. For example, police departments could be required, as a condition
of payment of settlements and judgments from central funds, to gather
information from each lawsuit and analyze that information for lessons. Los
Angeles County requires that the sheriff’s department submit a Corrective
Action Plan when asking the County Board of Supervisors to approve a
settlement. 178 That Corrective Action Plan identifies whether any policy
changes should be made based on the facts of the case.
Local governments could additionally, or in the alternative, require that
police departments and other agencies periodically analyze information in
all of the lawsuits brought against them and assess trends across cases for
176

See Schwartz, How Governments Pay, supra note 4, at 1199–1200.
John Rappaport, Cops Can Ignore Black Lives Matter Protestors. They Can’t Ignore Their
Insurers, WASH. POST (May 4, 2016), https://www.washingtonpost.com/opinions/cops-can-ignoreblack-lives-matter-protesters-they-cant-ignore-their-insurers/2016/05/04/c823334a-01cb-11e6-9d3633d198ea26c5_story.html [https://perma.cc/4MP5-YGBY].
178 See, e.g., COUNTY OF LOS ANGELES, SUMMARY CORRECTIVE ACTION PLAN (2016),
http://file.lacounty.gov/SDSInter/bos/supdocs/103624.pdf [https://perma.cc/N9QY-XUHN] (providing
an example of a corrective action plan response).
177

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risk-management lessons. One of us has found that police departments rarely
engage in this exercise but that a handful of cities have hired auditors to
review litigation trends among other types of risk assessment.179 This type of
analysis has revealed personnel and policy weaknesses unapparent through
other forms of review, and the rich data available in litigation files have not
only helped to identify problems but also pinpoint possible solutions that can
reduce liability risk.180
Information about settlements and judgments in civil rights cases can
also be made publicly available. In New York City, there has been a
longstanding struggle between the police department and other arms of city
government about whether and to what extent the department should be
required to learn more from lawsuits brought against it and its officers.181 The
comptroller—which pays settlements and judgments from central funds—
has repeatedly called on the NYPD to review lawsuits for lessons.182 When
the police department did not embrace this recommendation, the
comptroller’s office created ClaimStat—a mechanism by which the public
could see aggregated data about lawsuit payouts against city employees.183 A
recently introduced bill in the New York State Assembly seeks to make data
about individual lawsuits against police officers publicly available, so that
taxpayers and researchers can analyze trends in cases.184 A similar bill was
introduced in the California State Assembly.185 Police departments could also
be required to affirmatively engage in public-facing presentations about the
lawsuits brought against them to community groups and other stakeholders.
Finally, we note that lawsuits, and the information gleaned from them,
need not only be relied upon to impose sanctions. They might also be the
179

Schwartz, What Police Learn from Lawsuits, supra note 127, at 847.
Id. at 877. For example, an auditor for the Portland police department examined its lawsuits and
found a troubling trend of cases involving blows to the head by officers on the night shift at one police
station. The department retrained and more closely supervised those officers, and the allegations of head
strikes declined. When the Portland auditor found a cluster of claims suggesting officers did not
understand their constitutional authority to enter homes without a warrant, officers were retrained and the
unlawful entries ended. See id. at 854. Similarly, a Seattle police auditor compared closed litigation files
with internal-affairs investigation files to reveal weaknesses in the internal-affairs investigation process.
See id. at 858–59.
181 Id. at 874 n.184.
182 See Schwartz, Myths and Mechanics of Deterrence, supra note 129, at 1047–48.
183 See Claimstat Overview, N.Y.C. COMPTROLLER, https://comptroller.nyc.gov/reports/claimstat/
overview/ [https://perma.cc/Q4UT-JSUK].
184 See Denis Slattery, State Senate Bill Would Require NYC to Disclose Details of NYPD
Settlements, N.Y. DAILY NEWS (Dec. 7, 2020, 5:00 AM), https://www.nydailynews.com/news/politics/
new-york-elections-government/ny-brian-benjamin-nypd-settlements-20201207-zb2toeznz5bujf34e5tp
m7ktgy-story.html [https://perma.cc/9KJK-ZV3D].
185 A.B. 603, 2021–2022 Reg. Sess. (Cal. 2021), https://leginfo.legislature.ca.gov/faces/
billNavClient.xhtml?bill_id=202120220AB603 [https://perma.cc/MEX9-7N33].
180

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basis for rewarding departments, supervisors, or individual officers whose
efforts and interventions minimize constitutional violations. New Orleans,
for example, developed a peer-intervention program that has garnered
widespread praise and has been credited with helping to transform the city’s
police department while it has operated under a federal consent decree.186
One can imagine system-level interventions that foster a culture of
accountability from within, incorporating information from lawsuits and less
formal reports of potential misconduct.
C. Changes to Granular-Level Representation
When local governments and their officials are sued under Section
1983, qualified immunity doctrine and limitations on municipal liability are
tools that are deployed in litigation, usually by government lawyers in state
attorney general offices or city or county law departments. The decision to
deploy these tools need not be made reflexively, however, nor need be left
to the case-by-case discretion of individual line attorneys. Just as we expect
city and state law offices to set affirmative enforcement agendas, they also
can set defensive litigation agendas. 187 State and local executive officers
concerned about civil rights could, therefore, set policies intended to limit or
eliminate the use of these tools. 188 In this Section, we explore different
examples of how this could be accomplished. We should note at the outset
that although the forgoing proposals would require less coordinated action
than our other two proposals, some of them would also raise more difficult
ethical issues that we will describe.
Most noncontroversially, the decision whether to appeal an adverse
decision on, say, qualified immunity, is already a matter subject to the
discretion of public officials. 189 This embraces a government attorney’s
decision to seek certiorari or to take an interlocutory appeal from an adverse
district court decision. States and municipalities could and should exercise
judgment in areas where the public has an interest in (1) the development of
186

See EPIC: Ethical Policing Is Courageous, CITY OF NEW ORLEANS, http://epic.nola.gov/home/
[https://perma.cc/7HA9-H85L].
187 As discussed in supra note 133, there is ample literature addressing agenda setting in the
affirmative enforcement space but hardly any that speaks to defensive agenda setting.
188 In some jurisdictions, the state attorney general is an independently elected political actor who
might also take steps to limit the use of defenses such as qualified immunity. We expect, however, that
any such decision would of necessity involve consultation with the chief executive.
189 The preamble to the Model Rules of Professional Conduct states that “[u]nder various legal
provisions, including constitutional, statutory and common law, the responsibilities of government
lawyers may include authority concerning legal matters that ordinarily reposes in the client in private
client-lawyer relationships.” MODEL RULES OF PRO. CONDUCT, Preamble & Scope ¶ 18 (AM. BAR ASS’N
2018). Two examples highlighted by the preamble are the decisions whether to settle a case or to appeal
an adverse judgment. Id.

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the law, (2) compliance with constitutional obligations, and
(3) compensation for injured parties. State and local governments could take
the position that they will never pursue such appeals, or that they will only
do so when it advances some public-facing objective.190 We recognize, of
course, that the fiscal well-being of municipalities and state governments is
one public-facing justification that might favor seeking an appeal. 191 But
there are other aspects of the public interest—including the public’s trust—
potentially affected by decisions to pursue these defenses, particularly in
cases of clear misconduct. All of these interests and considerations should
be taken into account.
Putting aside the discretionary decisions to take an appeal, state and
local governments could constrain choices government attorneys make when
defending cases at the trial court level. We focus here on one innovation
specific to municipalities—local governments could instruct their attorneys
to decline to insist that plaintiffs meet Monell’s stringent custom, policy, and
practice standards for Section 1983 liability.192 That is, municipalities could
determine, as a matter of policy, that they will accept respondeat superior
liability when a line officer violates the Constitution while acting in the
course and scope of their employment. Taking this position would be
consistent with the professional responsibility literature we canvass below as
well as with a client-centered-lawyering approach. After all, where the
municipality is the defendant, it need not let its attorneys decide when and
where to invoke the Monell defense—as the client, it should decide for
itself.193
Were municipalities to take this step, constitutional litigation would be
greatly simplified. Individual officers could still, where appropriate, raise
qualified immunity as a defense. But even if they were entitled to that
190

When representing individual defendants, retainer agreements should specify that they do not
cover appellate proceedings absent specific agreement. See id. r. 1.2(c) (permitting limited representation
with the client’s consent, so long as it is reasonable under the circumstances).
191 This will not always be the case, as the fees expended by the plaintiff will be subject to feeshifting if the government’s appeal is unsuccessful. See, e.g., Hines v. City of Albany, 862 F.3d 215, 223
(2d Cir. 2017) (concluding that prevailing parties are entitled to recover a reasonable fee for preparing
and defending a fee application).
192 Such a policy might read as follows: “It is the policy of the [City or County] of [] to accept
vicarious liability for compensable losses suffered as a result of the commission of constitutional wrong
by the [City’s or County’s] officers even where such officers may escape personal liability through the
assertion of a good faith or qualified immunity defense.”
193 We recognize that the municipality is a legal construct and that as a practical matter its own
attorneys, or at least the head of its legal department, would be intimately involved in making this
decision. See Ryan D. Budhu, Beyond Efficiency and Equity: Exploring the Role of the Corporation
Counsel to Seek Justice, 12 ALB. GOV’T L. REV. 149, 172 (2019) (recounting the debate between
Corporation Counsel and former Mayor of New York City Ed Koch regarding whether to appeal an
adverse decision in landmark jail-conditions case).

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immunity, municipalities could accept liability if a constitutional violation
were proved. This would enable courts to determine the content of
constitutional law, avoiding the dilemma posed by Pearson v. Callahan.194
And although injured individuals would receive compensation for their
injuries, municipal entities need not take on the burden of punitive damages
that are currently only available against individuals.195 And it would mean
that the parties could forgo the often-taxing costs of discovery and proof in
Monell claims.
To be clear, we are not proposing that state and local governments
should concede liability in civil rights cases. Declining to take an immediate
appeal on the issue of qualified immunity does not prevent attorneys from
continuing to press the issue at summary judgment or trial. And if a city
stipulated that municipal liability could flow from the unconstitutional
conduct of a line officer, it could still argue that the officer’s conduct was
legal. We propose, simply, that if a plaintiff can prove that their
constitutional rights were violated, mayors, governors, and other officials
could decide to accept responsibility for the costs of that violation.
IV. OBJECTIONS AND RESPONSES
In this Part, we consider predictable objections to our proposals and
explain why we do not find them persuasive. Opponents may first raise the
concern that reforms will increase the incidence of litigation and impose a
significant financial burden on local communities. They may also question
our suggestion that better budgeting and risk management can provide useful
information for purposes of reforming local institutions. Third, critics may
question whether government attorneys charged with defending Section
1983 suits can ethically refrain from asserting certain defenses. Finally, some
may support the general goal of increasing accountability for rights
violations but argue that our method—enhancing state law enforcement of
constitutional rights—is not the proper course. We take up these questions
in turn.

194

555 U.S. 223, 227, 242 (2009); see supra note 56 and accompanying text.
One of us has argued that state and local governments could go further, by more directly limiting
the use of the qualified immunity defense when representing individual defendants. See Alex Reinert, We
Can End Qualified Immunity Tomorrow, BOS. REV. (June 23, 2020), https://bostonreview.net/lawjustice/alex-reinert-we-can-end-qualified-immunity-tomorrow [https://perma.cc/CJN8-5EX5]. While we
believe there is merit to this proposal, it raises discrete and difficult professional responsibility concerns
that are beyond the scope of this Article.
195

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A. The Fear of Increased Litigation and Liability
Each of our proposals will have some impact on the amount of litigation
faced by state and local governments, as well as the outcome of that
litigation. New state law causes of action against individuals and entities,
without the protection of qualified immunity or Monell, will reduce barriers
to meritorious civil rights claims. The same goes if state and local
governments adopt the changes we suggest to their defensive litigation
strategies in Section 1983 litigation. Add in the prospect of certain
indemnification, and lawyers and litigants can be more confident that
successful litigation will result in more complete compensation. By reducing
barriers and increasing tools for securing compensation, our proposals will
likely increase filings and payouts to some degree.196 These types of financial
concerns led to the failure of a bill in Maryland that would have increased
indemnification caps197 and played a leading role in opposition to the creation
of state law causes of action and the elimination of federal qualified
immunity protections.198
In addressing these fiscal concerns, we begin with the straightforward
point that officials should welcome some changes in how the system handles
civil rights litigation. If one agrees that the current model of Section 1983
litigation erects too many unjustifiable barriers to successful constitutional
tort litigation, then the elimination of those barriers will produce more just
outcomes, greater official accountability, and the many other benefits we
catalog in Part V. Tort law proceeds on the assumption that the victims of
wrongful conduct deserve compensation for the losses they have suffered. If
the system of litigation fails to compensate victims, that does not make their
losses disappear—instead, the losses fall on the victims, rather than being
196 Even if other doctrinal barriers such as qualified immunity are incorporated into the new state law
causes of action, state statutes that expand state and municipal liability will have fiscal implications. For
example, expanded municipal and governmental liability will ensure that plaintiffs can recover against
individual officers who are denied indemnification. And expanding municipal liability will ensure that
plaintiffs can recover even if qualified immunity protections for individual officers remain in place. In
these ways, expanding municipal and supervisory liability could increase government liability.
197 See Bryan Renbaum, Senate Hearing on Police Misconduct Sees Contentious Debate over
Liability Caps, MD. REP. (Sept. 23, 2020), https://marylandreporter.com/2020/09/23/senate-hearing-onpolice-misconduct-sees-contentious-debate-over-liability-caps/ [https://perma.cc/FVR4-XNF4].
198 See, e.g., N.M. CIV. RTS. COMM’N, supra note 9, at 46–47 (describing objections by dissenting
members to increased costs and overdeterrence); Billy Binion, Virginia Democrats Declined to End
Qualified Immunity. Police Unions Are Alive and Well., REASON (Sept. 16, 2020, 1:35 PM),
https://reason.com/2020/09/16/virginia-democrats-declined-to-end-qualified-immunity-police-unionsare-alive-and-well/ [https://perma.cc/R8DE-9F86] (describing financial concerns about ending qualified
immunity raised by police-union officials); Pauly, supra note 59 (describing opposition to state and
federal qualified immunity reforms by the Fraternal Order of Police, whose representatives argue “that
abolishing the doctrine would hurt police recruitment and bankrupt individual officers for doing their
jobs”).

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shifted to the tortfeasors. Put differently, the current system requires victims
to subsidize local governments and the public by bearing the financial losses
inflicted by police-involved violence and other constitutional torts. State and
local officials should readily acknowledge the unfairness of requiring
vulnerable communities to bear these losses and the wisdom of assigning the
losses to the local government agencies responsible.
Basic tort theory provides a second response to the worry about the
financial threat posed by new, more expansive constitutional tort liability. It
is a canon of tort law that structuring liability to fall on the cheapest cost
avoider will be most conducive to an overall reduction in the losses
associated with wrongful conduct. 199 Having local governments and their
police departments bear the costs of their officers’ unconstitutional conduct
should encourage adoption of policies and practices to reduce the frequency
of such events in the future—particularly if they adopt the types of riskmanagement and budgeting approaches we describe above. Thus, over time,
we would expect that increased financial exposure for governments will
ultimately lead to reduced liability costs. 200 In other words, officials can
embrace the new liability rules on the theory that such liability will achieve
the goal of securing greater compliance with constitutional norms and, as a
result, reduced costs litigating claims of unconstitutional conduct.
Other factors should moderate the perceived threat of ruinous fiscal
consequences. Plaintiffs can recover only once for their injuries—the
recoverable damages resulting from a constitutional violation will not be
greater simply because local governments eschew the protections of Monell
or face vicarious liability as a matter of state law. Moreover, as described in
Section II.A, state laws allowing government officials to be sued for
common law torts often include vicarious liability, and there is no evidence
that these causes of action have resulted in devastating government
liability.201 Instead, in these states—as in the others—government liability
costs amount to less than 1% of most governments’ budgets. 202 Smaller
199

On the construct of cost avoidance in tort, see RICHARD POSNER, ECONOMIC ANALYSIS OF LAW
§ 6.15 (8th ed. 2014).
200 Accord Stephen Rushin, Structural Reform Litigation in American Police Departments, 99 MINN.
L. REV. 1343, 1406 (2015) (finding that structural reform of police departments can save money by
putting systems in place that reduce the number of constitutionally dubious police practices and thereby
reduce the tort liability burden of litigation).
201 Admittedly, there are barriers to suit for state law tort claims as well, see Rosenthal, supra note
95, at 805–09, but the substantive standard for common law tort liability is usually lower than for
constitutional claims, see, e.g., Minneci v. Pollard, 565 U.S. 118, 130 (2012) (comparing liability
standards for Eighth Amendment and state tort law). For discussion on the longstanding myth that
vicarious liability will bankrupt local governments, see Riss v. City of New York, 22 N.Y.2d 579, 585
(1968) (Keating, J., dissenting) (“The fear of financial disaster is a myth.”).
202 See Schwartz, How Governments Pay, supra note 4, at 1164–65.

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jurisdictions, those that insure against such liability, similarly report that
insurance consumes less than 1% of their budgets.203
Objections might also be raised that expanded governmental liability
will result in increased litigation and, with the possibility of attorneys’ fees
being awarded, small-value claims might become more common subjects of
litigation. On this account, even if governmental entities are responding
appropriately to the risks of liability by fostering compliance with
constitutional norms, litigation and the costs attendant to it may increase
because of the reduced barriers to recovery and the increased incentives for
attorney-driven claims. While we cannot rule this possibility out, we doubt
that it will have significant fiscal consequences. First, low-value claims, if
meritorious, should be amenable to early settlement that will reduce any
potential fee recovery.204 Second, the high substantive bar necessary to prove
many constitutional claims will still deter many attorneys from taking smallvalue or frivolous claims. Because plaintiffs’ civil rights attorneys tend not
to receive attorneys’ fees under Section 1988 when cases settle and instead
are paid from a portion of their clients’ proceeds if they win, a practice of
bringing a case with limited damages or questionable liability is simply not
financially sustainable for most attorneys.205
The prospect of increased litigation against state and local officials
raises more than just fiscal concerns, however. Some may also fear that
exposing individual officers to additional litigation (whether with full or
limited indemnification) will overdeter, limiting the effectiveness of current
employees and making it harder for state and local governments and their
law enforcement agencies to attract new employees.206 Concerns that civil
rights damages awards will lead to financial ruin and overdeterrence have
been the primary arguments against reforms to civil rights enforcement,
including recent calls to end qualified immunity.207 We acknowledge—for
reforms that would eliminate indemnification limits and require officer
203

See id.
In jurisdictions that retain the Buckhannon rule for fees, a settlement will not trigger any basis for
seeking fees unless it is court ordered. See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health
& Hum. Res., 532 U.S. 598, 604 n.7 (2001).
205 See generally Reingold, supra note 83, at 12–16 (illustrating how, in the absence of fee-shifting,
plaintiffs’ lawyers are unlikely to bring claims other than those with strong evidence of liability and
significant damages).
206 Accord Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (“[T]he danger that fear of being sued
will ‘dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the
unflinching discharge of their duties.’” (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949))).
207 See, e.g., Jay Schweikert, The Most Common Defenses of Qualified Immunity, and Why They’re
Wrong, CATO INST. (June 19, 2020, 2:17 PM), https://www.cato.org/blog/most-common-defensesqualified-immunity-why-theyre-wrong [https://perma.cc/CW6A-LS5N] (rebutting the most common
arguments in favor of qualified immunity).
204

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contribution to settlements and judgments—that there is an absence of good
data on what, if any, downstream effects these changes would have on local
government budgets and officer conduct, recruiting, and retention.208 But we
note that deterring behavior associated with the stereotypical “tough cop,” in
recruiting, training, and on the beat, may produce a workforce better able to
de-escalate violent situations and reduce the likelihood of constitutional
violations.209 Without evidence, we see no reason to predict that eliminating
indemnification caps or requiring officers sometimes to contribute to
settlements will have the dire effects critics suggest.
A final objection—one associated with John C. Jeffries, Jr.—holds that
changes in the remedial framework may lead courts to adjust their definition
of the underlying constitutional rights.210 On this hydraulic conception of the
relationship between constitutional right and remedy, courts may respond to
a reduction in nonsubstantive barriers to remedy by limiting the substantive
constitutional right, thereby keeping the status quo remedial regime intact.
While we find much to admire about Jeffries’s theory, we are not convinced
it accurately describes the process by which federal courts have engaged in
common law constitutional adjudication. 211 Moreover, even if Jeffries’s
account accurately describes the work of federal courts, it does not follow
that it would apply in the interpretation and application of a state law
statutory regime such as the one we propose. Indeed, if anything the turn
towards textualism suggests that, provided the new statutes were clear
enough, both federal and state courts would apply them to expand
constitutional remedies as the relevant state legislature intended. 212
Alternatively, if state and local governments adopt the changes we propose
to their defensive litigation agenda in Section 1983 litigation, one might have
a Jeffries-inspired concern that courts adjudicating those claims would
208 We would welcome additional research into the role of indemnification caps and officer
contributions in such jurisdictions as Cleveland and New York City—which have required officers to
contribute to settlements on occasion—and the effects of Colorado’s new law. For predictions about how
civil rights litigation would function without qualified immunity, see Schwartz, After Qualified Immunity,
supra note 4, at 361–63.
209 In contrast to the tough cop, studies suggest that de-escalation strategies can reduce the use of
deadly force. See Kevin Davis, Defusing Deadly Force, 107 ABA J. 44 (2021) (reporting on de-escalation
training and its impact on reduced levels of police violence).
210 See generally John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 YALE L.J.
87, 90 (1999) (suggesting that denial of money damages for constitutional violations fosters the
development of constitutional law).
211 See Schwartz, After Qualified Immunity, supra note 4, at 320.
212 For example, even though the Religious Land Use and Institutionalized Persons Act (RLUIPA)
provides statutory rights that go beyond the First Amendment, courts seem to have little difficulty fully
enforcing those statutes. See, e.g., Holt v. Hobbs, 574 U.S. 352, 355–56 (2015) (holding that a prison
grooming policy prohibiting beards substantially burdened a Muslim inmate’s religious practice under
RLUIPA).

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reflexively incorporate those barriers into their substantive constitutional
rulings. This would require mental gymnastics on the part of courts that
would be challenging—after all, if some jurisdictions adopt the changes we
propose and others do not, courts can hardly create different constitutional
rules to cover similar cases. And we see no evidence that, in comparable
situations, a similar dynamic has emerged. For example, where Monell
claims are brought challenging formal policy, we are aware of no evidence
that courts have applied a more stringent substantive constitutional standard
simply because there is no qualified immunity defense.
B. Objections to Proposed Budgeting and Risk-Management Changes
All of our proposals operate on the assumption that civil rights damages
awards should both compensate and deter. This leads to the proposition that
governments should find ways to shape budgeting and indemnification rules
and risk-management practices to increase lawsuits’ ability to achieve these
goals. But putting aside the fiscal concerns we address above, some may be
skeptical of the notion that outcomes in lawsuits should have a greater impact
on state and local institutions such as police departments, prisons, and jails.
Some may fear that budgeting and indemnification rules that result in
financial or other sanctions for officers are misguided because lawsuits are
weak signals of impropriety. And, relatedly, some may object that lawsuit
data are too flawed to serve much use to state and local officials seeking to
improve policies and practices.
These objections may be informed by the view that civil rights suits
should not be a basis for sanctions, financial or otherwise, because the
outcomes of these cases are not accurate reflections of the extent of officer
or department misconduct. This is surely true—payments in civil rights suits
do not necessarily reflect the extent and severity of wrongs for multiple
reasons. Lawsuit payouts likely underestimate the totality of misconduct. As
one example, only about 1% of people who believe police used improper
force against them ever sue. 213 And multiple barriers to relief—including
pleading requirements, challenges getting discovery, qualified immunity,
and jurors’ skepticism of plaintiffs’ claims—may mean that plaintiffs lose
even when their rights have been violated. But payouts in certain cases may
also overstate misconduct. Some people may sue even though their claims

213 MATTHEW R. DUROSE, ERICA L. SCHMITT & PATRICK A. LANGAN, U.S. DEP’T OF JUST.,
CONTACTS BETWEEN POLICE AND THE PUBLIC: FINDINGS FROM THE 2002 NATIONAL SURVEY 16–20
(2005) (finding that the police had used force against an estimated 664,458 people, 87.3% of whom
believed that the police acted improperly, and only approximately 7,416 (1.1%) of whom filed a lawsuit
regarding the alleged misconduct).

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are weak. And governments may agree to settle for strategic reasons, even if
the department or officer did not engage in misconduct.
For all of these reasons, governments should not blindly sanction
officers or departments for every award entered against them. But officers’
contributions to settlements and judgments can be conditioned on findings
that settlements were not entered into purely for strategic reasons. The
Colorado statute, for example, conditions officers’ financial contributions on
a finding by the local government that the officer acted in bad faith.214
The imperfections of lawsuit data, moreover, do not deprive them of
potential utility when assessing personnel and policy weaknesses.
Information generated during litigation is, undeniably, flawed: the
adversarial process produces biased and sometimes-irrelevant information
about a relatively small number of misconduct allegations, and the slow pace
of litigation means that a case may not be resolved until several years after
the underlying event. But in cooperation with such groups as the NAACP,
the Department of Justice has drawn on lawsuit data to help identify
problems at the local level. 215 Local departments have found analysis of
information from lawsuits useful in revealing incidents that did not otherwise
come to light and in supplying more comprehensive accounts than those
gathered during internal-affairs investigations.216 Moreover, departments are
able to mitigate the flaws of lawsuit data by gathering information from each
stage of litigation, reviewing data in context with other available
information, and using independent auditors to consider what the data may
show.
C. The Professional Responsibility Objections to Forgoing Valid Defenses
in Section 1983 Litigation
Our third proposal—revising the way local governments and their
attorneys defend against Section 1983 claims—raises discrete concerns
related to the ethical implications of forgoing available defenses to liability.
Of course, a lawyer must make colorable arguments that are in the client’s
best interest. 217 But for two reasons, we do not think this foundational
principle undermines our proposal that local governments may direct their

214

See COLO. REV. STAT. § 13-21-131(4) (2021).
See Rushin, supra note 165, at 3219–20 (identifying discussions with civil rights litigators as a
source of information for DOJ officials considering structural reform initiatives).
216 See generally Schwartz, What Police Learn from Lawsuits, supra note 127, at 858–59, 870–74
(explaining the benefits of closed litigation files as compared to less comprehensive internal affairs
investigations).
217 See MODEL RULES OF PRO. CONDUCT r. 1.3 cmt. 1 (AM. BAR ASS’N 2018).
215

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attorneys to concede municipal liability for constitutional wrongs and
thereby forgo available Monell defenses.218
First, where a municipality is the client, its own decision not to invoke
Monell standards should be respected and effectuated by its lawyers. Even if
local government attorneys might typically consider municipal fiscal
interests as they litigate on behalf of their clients, any decisions about how
to balance such concerns against greater accountability for official
misconduct would necessarily fall to the client. Indeed, it would be a
departure from standards of professional responsibility for a municipality’s
lawyers to refrain from following their client’s policy as to such decisions.219
And because Monell standards are not jurisdictional in any sense, courts
could not sua sponte apply the Monell liability rule and reject plaintiffs’
claims. Just as parties routinely stipulate that a particular defendant was
acting under color of law,220 an element of a Section 1983 violation, so could
the parties in cases against municipalities stipulate that the Monell standards
have been met.
This proposal is also consistent with literature that identifies the ethical
obligations of government attorneys, particularly when representing entities
or sovereigns, to go beyond winning in court and include the vindication of
public-regarding values. Notwithstanding that much of this work and
commentary has revolved around the role of public prosecutors in criminal
matters, 221 government attorneys in civil enforcement proceedings, and
defensive litigation in the injunctive context,222 we find much in the literature
218

See supra Section I.B (discussing the standards for Monell liability).
See, e.g., MODEL RULES OF PRO. CONDUCT r. 1.2(a) cmt. 1 (providing that the client has the
“ultimate authority to determine the purposes to be served by legal representation, within the limits
imposed by law and the lawyer’s professional obligations”).
220 See, e.g., Martinez v. Cui, 608 F.3d 54, 58 n.3 (1st Cir. 2010) (noting stipulation).
221 Government prosecutors are expected to adhere to heightened ethical obligations that require
them to “do justice.” See, e.g., MODEL RULES OF PRO. CONDUCT r. 3.8 cmt. 1 (“A prosecutor has the
responsibility of a minister of justice and not simply that of an advocate.”).
222 In Bruce Green’s seminal work, for example, he focuses on habeas cases, civil enforcement
actions, and civil defense actions in which an agency or the government itself is the real party in interest.
Bruce A. Green, Must Government Lawyers “Seek Justice” in Civil Litigation?, 9 WIDENER J. PUB. L.
235, 243–55 (2000); see also Steven K. Berenson, Public Lawyers, Private Values: Can, Should, and
Will Government Lawyers Serve the Public Interest?, 41 B.C. L. REV. 789, 835 (2000) (focusing on
criminal prosecutions, agency enforcement actions, and defense of agency actions in injunctive cases);
Budhu, supra note 193, at 172 (recounting the debate between Corporation Counsel and former New
York City Mayor Ed Koch regarding whether to appeal an adverse decision in a landmark jail-conditions
case); Geoffrey C. Hazard, Jr., Conflicts of Interest in Representation of Public Agencies in Civil Matters,
9 WIDENER J. PUB. L. 211, 219 (2000) (illustrating the complexity of ethical issues faced by lawyers
appointed in child custody proceedings in understanding who their clients are); Daniel S. Jacobs, The
Role of the Federal Government in Defending Public Interest Litigation, 44 SANTA CLARA L. REV. 1, 1–
2 (2003) (discussing the federal government’s litigating position in defending a public interest case);
219

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that bears generally on the problem we present here.223 Some disagree, to be
sure,224 but the weight of commentary supports the view that government
attorneys must consider ethical issues in addition to the narrow forms of
zealous advocacy that we expect of members of the private bar. 225 Thus,
where in private litigation the client has the ultimate decision on pursuing
certain goals, in government, litigation attorneys have the authority “to
determine what ‘seeking justice’ means and how to reconcile this objective
with other relevant government objectives.” 226 Judge Jack Weinstein
summed up his question for government attorneys defending civil cases: “Is
opposing this claim just, is it fair, is there a reasonable basis for believing
that the government can prevail on both the law and facts?”227
One might read this literature to support the decision of an individual
government attorney to effectuate the public interest by advancing a
litigation position that functionally results in respondeat superior liability for
municipalities in Section 1983 litigation, but we think the far better course is
for municipalities to come to this position as a matter of policy.228 For those
Geoffrey P. Miller, Government Lawyers’ Ethics in a System of Checks and Balances, 54 U. CHI. L. REV.
1293, 1296–97 (1987) (focusing only on role of government attorneys in defending agency actions);
Ralph Nader & Alan Hirsch, A Proposed Right of Conscience for Government Attorneys, 55 HASTINGS
L.J. 311, 315–16 (2003) (arguing that government attorneys should have a right, free of retaliation, to
decline to make certain arguments in certain circumstances, even when their agency client demands it);
Elisa E. Ugarte, The Government Lawyer and the Common Good, 40 S. TEX. L. REV. 269, 274–77 (1999)
(focusing on the role of agency lawyers in assisting in the development and implementation of
government regulations).
223
On the rare occasions when scholars have discussed damages claims, they have limited their
consideration to suits that run directly against the government, via statutes such as the Federal Tort Claims
Act. See, e.g., Paul Figley, Ethical Intersections & the Federal Tort Claims Act: An Approach for
Government Attorneys, 8 U. ST. THOMAS L.J. 347, 357–59 (2011) (analyzing the duty of government
attorneys to zealously advocate for their client in the context of FTCA claims).
224 See generally Catherine J. Lanctot, The Duty of Zealous Advocacy and the Ethics of the Federal
Government Lawyer: The Three Hardest Questions, 64 S. CAL. L. REV. 951, 957–58 (1991) (arguing that
ethical constraints on government lawyers are no different than those which regulate attorneys for private
parties); Lybbert v. Grant County, 1 P.3d 1124, 1129 (Wash. 2000) (en banc) (holding that government
attorneys have no duty “to maintain a standard of conduct that is higher than that expected of an attorney
for a private party”).
225 Green, supra note 222, at 269–70 (“This may mean, at the very least, that there is a duty to refuse
to assist the client in violating its fiduciary duty to the public or in otherwise acting lawlessly. This may
also mean that government lawyers should take the public interest into account when making decisions
entrusted to them.”).
226 Id. at 277–79 (“Following the direction of government officials who do not have authority to chart
the course of litigation would result in an abdication of the government lawyer’s responsibility. It would
be no less an abdication to proceed as if the job is to win a lawsuit, and to do anything possible to win,
thereby ignoring other government objectives that may be paramount.”).
227 Zimmerman v. Schweiker, 575 F. Supp. 1436, 1440 (E.D.N.Y. 1983).
228 Permitting an individual attorney to decide whether to raise a valid defense on behalf of the client,
without the client’s consent, raises difficult professional responsibility questions that are beyond the scope

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who recoil at the prospect of a government entity forgoing a valid defense
such as the standards for Monell liability, we note that decisions not to defend
against certain litigation have a long provenance, even though they are
controversial. The Obama Administration’s decision not to defend against a
constitutional challenge to the Defense of Marriage Act has been criticized,
but it clearly had authority to do so. 229 Even in more traditional damages
litigation, the federal government has sometimes expressed its determination
that it will forgo certain arguments that it could make in defense against
claims. In 2014, for example, Attorney General Eric Holder issued a
memorandum stating that in any litigation that came before it, the
Department of Justice would take the position that the protections afforded
by Title VII would be extended to include a person’s gender identity,
including transgender status.230 The memo was based on Attorney General
Holder’s “best reading” of the statute, and he issued the guidance to DOJ
lawyers to ensure “consistent treatment of [Title VII] claimants throughout
the government.”231 We see no barrier to local governments making similar
determinations regarding municipal liability under Section 1983.
We also, however, have proposed that government attorneys
significantly restrict their use of the right to interlocutory appeal afforded in
cases involving qualified immunity. Inasmuch as this proposal addresses a
defense applicable to individual defendants, the ethical considerations are
arguably thornier. After all, when representing individual officers,
government attorneys are expected to behave no differently from any
attorney in the private bar—vindicating their clients’ interests by raising
colorable defenses to liability, including defenses such as qualified
immunity.232 But the decision as to whether to take advantage of the right to
an interlocutory appeal of an adverse qualified immunity ruling is one that
arguably rests within the province of the government attorney.233 This would

of this Article. Here, however, we propose that the client affirmatively consent to accepting vicarious
liability for constitutional violations and direct its attorneys to effectuate that goal.
229 See Ball, supra note 133, at 77 n.1; Fried, supra note 133, at 549 (criticizing the Obama
Administration’s decision to abandon defense of DOMA).
230 See Memorandum from Eric Holder, Att’y Gen., to U.S. Att’ys (Dec. 15, 2014), https://www.
justice.gov/file/188671/download [https://perma.cc/JW2T-GLEH].
231 Id.
232 RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 97 (AM. L. INST. 2000) (suggesting
that defining the client for a government lawyer depends on the context of litigation, but that government
attorneys representing a “specific individual” in their personal capacity should be considered to be
representing the individual and not any government entity).
233 The Model Rules of Professional Conduct provide examples of authority vested in government
lawyers, including the decision whether to appeal an adverse judgment. See supra note 189. And attorneys
may specify the scope of representation in their retainer agreements, including by carving out appellate
representation from the contracts. See MODEL RULES OF PRO. CONDUCT r. 1.2(c) (AM. BAR ASS’N 2018).

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certainly be the case where the grounds for seeking interlocutory appeal are
not present—as in when a judge’s rejection of the qualified immunity
defense turns on disputed questions of fact. 234 Moreover, where an
interlocutory appeal would not protect an individual defendant from the
burdens of ongoing litigation, government attorneys should be able to
exercise their discretion not to seek one.235
Whether government attorneys could decline to seek an interlocutory
appeal in cases in which the only claims pending in the suit are amenable to
dismissal on qualified immunity grounds is a different matter. On one hand,
the government has an interest in how appeals are prosecuted that goes
beyond the individual liability of the defendant. Even if the state or local
government has not determined that qualified immunity undermines the
public interest, it may have an interest in preventing delay, avoiding the
development of negative precedent, or reducing the plaintiffs’ expenses in a
fee-shifting action. 236 On the other hand, the individual defendant has a
concrete interest in bringing an appeal that could immediately terminate the
pending litigation. Seen in this light, if the state and local governments
themselves have determined as a matter of policy that interlocutory appeals
on qualified immunity grounds undermine the public interest, there is a
potential conflict of interest for government attorneys who on one hand
should advance meritorious defenses for their individual clients and on the
other hand should act in the public interest. How these potential conflicts
should be managed, we maintain, will depend in part on existing laws and
local agreements regarding the defense and indemnification of state and local
officials.237
D. The State Role in Fostering Constitutional Rights Enforcement
Two more questions might arise from our proposals to bolster the
enforcement of state and federal constitutional rights. First, critics of such
enforcement might point to the availability of state tort remedies and urge

234

Johnson v. Jones, 515 U.S. 304, 314 (1995).
The justification for permitting an interlocutory appeal in qualified immunity cases is to protect
individual defendants from the burdens of litigation. Mitchell v. Forsyth, 472 U.S. 511, 525–27 (1985).
If injunctive or Monell claims will remain viable regardless of the resolution of qualified immunity, then
seeking an interlocutory appeal will not protect those interests, for the individual defendant will still face
the burdens of litigation even if they will not face any direct financial liability.
236 This is one reason why offensive, nonmutual collateral estoppel does not apply to government
entities. See United States v. Mendoza, 464 U.S. 154, 158–64 (1984) (rejecting the doctrine’s application
to litigation with the government).
237 In some jurisdictions, for example, it may be possible to condition representation on an agreement
not to take an interlocutory appeal on qualified immunity grounds. In other jurisdictions, perhaps private
counsel could be permitted to represent the individual defendant in their interlocutory appeal.
235

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statutory improvements directed at making such tort remedies more
effective, rather than statutory attention to constitutional remediation.
Second, some observers may doubt the constitutional authority of state
legislatures to adopt statutes aimed at making the enforcement of federal
constitutional rights more effective.
As to the first question, we place great value on the remedial tradition
represented by state common law tort litigation, and we acknowledge the
link between constitutional torts and common law torts. As others have
cogently argued, state tort law and constitutional litigation share much in
common.238 Both involve invasions of serious, often overlapping, interests,
and both have a place in creating accountability and ensuring compensation
for rights invasions. But we see a real virtue in focusing reform efforts on
constitutional rights. Perhaps most importantly, constitutional rights protect
different, and broader, interests than state torts. While there are clear state
analogues to excessive force or wrongful detention claims, it is far more
difficult to find state law torts that protect rights to free expression, to
freedom from discrimination, to due process, and to privacy, just to name a
few. State tort law can help address abusive policing, but we would suggest
that enforcement of equality norms—norms that are not the subject of state
tort law—is a significant concern that should be the subject of any reform
proposal.
Our focus on constitutional rights has two other dimensions. For
starters, such rights have a distinct salience and potency. Whether state or
federal, they are supreme to common law or statutory rights, and
constitutional rights specifically bind government actors. We believe that
respect for the rule of law will grow as states implement enforcement
regimes that provide opportunities to secure constitutional guidance in the
regulation of government action. In addition, we believe that a state role in
the enforcement of federal constitutional rights, as we propose here, creates
positive externalities that would not accompany recourse to state tort law. It
will facilitate the development of federal constitutional norms across
multiple jurisdictions, even those which may not adopt the measures we
recommend. And it will encourage states to see themselves as partners in the
implementation of federal constitutional norms, not just the subject of
adversarial litigation in which government actors are targets of enforcement.
This conception of states as partners in the creation of state causes of
action to vindicate federal constitutional rights raises two questions that we
think have relatively straightforward answers. First, we think states have

238 See, e.g., John C.P. Goldberg & Benjamin C. Zipursky, Torts as Wrongs, 88 TEX. L. REV. 917,
939 (2010) (describing the category of “constitutional torts”).

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ample authority under the state and federal constitutions to adopt legislation
to carry federal norms into effect. 239 State legislatures have presumptive
authority to impose duties and obligations on the state and local officials of
the state in question. By creating a new state law cause of action, state
legislatures would carry into effect a set of legal obligations that already bind
state and local officials by virtue of the U.S. Constitution’s Supremacy
Clause. 240 States today frequently adopt state laws to facilitate the
effectuation of federal norms; the Affordable Care Act contemplated a
legislative role for the states in setting up the exchanges and other elements
needed to support the health insurance market.241 Legislation to effectuate the
federal bill of rights seems equally uncontroversial.
Second, we do not believe that federal remedies for constitutional
violations by state actors under Section 1983 have so occupied the field as
to preempt state efforts to provide more effective remedies. Congress can set
a floor for the enforcement of constitutional rights without necessarily
specifying a ceiling that would preempt state supplementation.242 Consider,
for illustrative purposes, the Court’s decision in Danforth v. Minnesota.243
There, a post-conviction petitioner sought to challenge his conviction
through the invocation of a new rule of criminal procedure that was
unavailable to federal habeas petitioners under the rule of Teague v. Lane.244
Despite the absence of a federal remedy, however, the Danforth Court
squarely ruled that the state had the power to afford the petitioner broader

239 See THE FEDERALIST NO. 17, at 107 (Alexander Hamilton) (Jacob E. Cooke ed., 1961)
(describing the “ordinary administration of criminal and civil justice” as “belonging to the province of
the State governments”); accord id. NO. 45, at 313 (James Madison) (“The powers reserved to the several
States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties
and properties of the people . . . .”).
240 See U.S. CONST. art. VI (declaring federal law to be the supreme law of the land, binding on state
judges notwithstanding contrary state law). In many cases, the provisions of the federal Constitution track
those in state charters. See Robert A. Schapiro, Judicial Deference and Interpretive Coordinacy in State
and Federal Constitutional Law, 85 CORNELL L. REV. 656, 692 (2000) (confirming that “[m]any state
constitutions contain individual rights provisions that mirror those in the federal Bill of Rights”).
241 According to the National Conference of State Legislatures, twenty states have adopted state laws
that helped to secure the enforcement of ACA provisions. See NAT’L CONF. OF STATE LEGISLATURES,
supra note 156 (collecting state laws as of July 2021 that codified some ACA consumer protections).
242 See, e.g., Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional
Norms, 91 HARV. L. REV. 1212, 1261 (1978) (defending a role for states in extending the enforcement of
some federal constitutional norms).
243 552 U.S. 264 (2008).
244 See 489 U.S. 288, 310–11 (1989) (holding that new rules of constitutional law cannot provide the
basis for federal habeas relief unless they fall within one of two narrow exceptions).

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relief as a matter of state post-conviction review.245 States, in short, are free
to provide supplemental constitutional protections as a matter of state law
that may be unavailable as a matter of federal law.
Free to act to bolster civil rights enforcement and to rethink their
litigation priorities when defending constitutional tort claims, state and local
governments can exercise the more nimble and multifaceted form of
federalism that we described earlier.246 State and local governments need not
await reforms at the federal level—reforms that may never emerge from a
gridlocked Congress and complacent Supreme Court. Nor need the states sit
back content to defer to the existing dispensation. Instead, states and
localities can take a leadership role in providing important support for civil
rights enforcement. By asserting an independent role in ensuring remedial
options that the federal government has failed to secure, states and localities
can help redefine what we mean by remedial adequacy and the rule of law
and lessen the incidence and costs of constitutional violations. The next Part
describes in greater detail the range of benefits that might flow from these
state and local efforts.
V. ASSESSING THE BENEFITS OF STATE AND LOCAL
CONSTITUTIONAL REMEDIATION
The Supreme Court, increasingly suspicious of civil rights litigation,
has created a web of doctrines that makes it difficult for individuals to secure
redress for the unconstitutional actions of government officials, even in
egregious cases. 247 Failed litigation, in turn, may convey the message to
police departments and other government agencies that they need not
implement policies to reduce the incidence and cost of constitutional
violations and that they may continue to violate the rights of individuals
without consequence.248
245

See 552 U.S. at 291; cf. Arizona v. United States, 567 U.S. 387, 416 (2012) (holding that
Congress’s enforcement scheme for undocumented immigrants displaced the state’s powers to impose
more stringent enforcement and punishment). For an account of Arizona, see Lucas Guttentag,
Immigration Preemption and the Limits of State Power: Reflections on Arizona v. United States, 9 STAN.
J. C.R. & C.L. 1 (2013).
246 See supra notes 30, 46 and accompanying text (describing the work of Gerken, Bulman-Pozen,
and Gluck as occupying a middle ground between nationalists and federalists and as emphasizing the
range of roles states play in our complex federal system).
247 See, e.g., Brief of Cross-Ideological Groups Dedicated to Ensuring Official Accountability,
Restoring the Public’s Trust in Law Enforcement, and Promoting the Rule of Law as Amici Curiae in
Support of Petitioner, Baxter v. Bracey, No. 18-1287 (U.S. May 31, 2019), 2019 WL 2370285 (collecting
examples).
248 See Mullenix v. Luna, 136 S. Ct. 305, 316 (2015) (Sotomayor, J., dissenting) (“By sanctioning a
‘shoot first, think later’ approach to policing, the Court renders the protections of the Fourth Amendment
hollow.”).

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Our proposed reforms aim to disrupt this maladjusted system. We
harbor no illusions that streamlining judicial enforcement of constitutional
rights will alone usher in a more just society. Civil litigation aimed at
securing redress for constitutional violations represents only one piece of a
complex mosaic of reforms needed to address systemic racism in police
departments and in other walks of life. Nonetheless, the implementation of
civil litigation reforms at the state and local levels can make several
important contributions. First, and most directly, these reforms would enable
victims of constitutional violations to secure compensation and in some cases
forward-looking relief that would prevent future violations. Second, even if
only some jurisdictions adopted these changes, it would allow for the
articulation and development of legal norms, a process that has been stilted
by first-order barriers such as qualified immunity. By freeing rights
enforcement from the required showing of prior “clearly established” law,
reforms would allow constitutional law to develop and become established
for future cases. Third, state and local reform might restore some faith in the
law as a tool for addressing the systemic racism and brutality that permeates
the criminal legal system. Fourth, and perhaps most importantly, unlike
changes proposed through national legislation or attempts to convince the
Supreme Court to revisit doctrine, state and local leaders can implement
some elements of this reform program as early as tomorrow.
A. The Importance of Concrete Remedies
The suggested reform agenda should help furnish remedies for many of
the constitutional violations blocked by restrictive doctrines such as qualified
immunity. Of course, improved remediation is no panacea, but it can make
a number of well-known contributions to the efficacy of the law. An award
of damages can provide compensation to the victims of constitutional
wrongs. Such awards attempt, however inadequately, to make victims whole
for the losses they have suffered.249 At the same time, an award of damages
confronts the relevant government entity with the economic consequences of
constitutional wrongdoing, encouraging that entity to internalize a portion of
the cost of its activities and take appropriate steps to reduce the likelihood of
future violations. 250 From a corrective justice perspective, the award of
249

See, e.g., Carey v. Piphus, 435 U.S. 247, 264–66 (1978) (articulating a make-whole standard for
the compensation of constitutional tort victims).
250 On the standard law-and-economics account of deterrence, the obligation to pay damages for
unlawful conduct will encourage tortfeasors to adopt cost-effective measures to reduce the cost of
accidents (and constitutional torts). Yet some scholars argue that government officials do not respond
well to price signals, attending more closely to the desires of the voters and their own prospects for
reelection than to municipal bottom lines. For a discussion, see Pfander et al., The Myth of Personal

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damages may also restore community faith in the system of law, providing
redress and righting a wrong.251 Civil recourse theory further explains that
tort liability helps mend the community by allowing the individual victim of
a wrong to pursue redress. On this view, governments owe a basic duty to
provide victims with access to tribunals in which they can pursue vindication
for the wrongs they have suffered.252 Fair process and a right to be heard can
do much to persuade people of the system’s legitimacy and legitimacy in
turn fosters compliance with law.253
To be sure, the creation of a more just system of redress will cost
money. Budget-conscious city managers, and their insurance carriers, will
confront these costs with understandable concern. In theory, at least, police
departments and other government agencies can take appropriate steps to
minimize the likelihood of a constitutional violation through proactive
measures that will reduce the cost and incidence of violations. But
institutions and the individuals who run them may have a bias toward the
preservation of the status quo, a tendency to think that problems will solve
themselves through exhortation, and a sense of inertia compounded by labor
agreements and politically powerful employee unions, especially in the
world of urban policing.254 Local officials should, we think, use the potential
threat of liability to justify reforms in local government institutions along the
lines of the budgeting and risk-management initiatives we have described
that will ward off future constitutional violations and the costs associated
with them.
To see the prospects for moderating any increased liability that reforms
might threaten, consider the structural reforms that the Department of Justice
implements as part of its oversight of local police departments. 255 These
reforms consistently include a change in training practices, an improvement
Liability, supra note 2, at 602–03 (collecting references). We add only that we regard the impact of money
claims on municipal budgets as a politically salient factor in the calculus of responsible officials.
251 For an effective restatement of corrective justice theory in light of the civil recourse critique of
Goldberg and Zipursky, see Ernest J. Weinrib, Civil Recourse and Corrective Justice, 39 FLA. ST. U. L.
REV. 273, 273–76 (2011).
252 See JOHN C.P. GOLDBERG & BENJAMIN C. ZIPURSKY, RECOGNIZING WRONGS 25–51 (2020).
253 See TOM R. TYLER, WHY PEOPLE OBEY THE LAW 57 (1990) (reporting on a survey of law
compliance and concluding that systemic legitimacy plays an important role in individual willingness to
comply with law); see also Jonathan Jackson, Ben Bradford, Mike Hough, Andy Myhill, Paul Quinton &
Tom R. Tyler, Why Do People Comply with the Law? Legitimacy and the Influence of Legal Institutions,
52 BRIT. J. CRIM. 1051, 1051–71 (2012) (concluding that people have greater faith in and are more likely
to comply with a criminal justice system that has “a shared moral purpose with [its] citizens”).
254 On the difficulty of instituting changes in police practices, see Catherine L. Fisk & L. Song
Richardson, Police Unions, 85 GEO. WASH. L. REV. 712, 747–56 (2017), and Stephen Rushin, Police
Union Contracts, 66 DUKE L.J. 1191, 1222–39 (2017) (describing the barriers to police accountability
established through the police union’s role in collective bargaining).
255 See supra note 38.

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in the way citizen complaints are processed and investigated, and the
appointment of an external monitor to oversee department practices and
compliance.256 Risk management plays an important role in the process. One
detailed study reports that local governments that implemented such reforms
experienced a notable decrease in liability payments. Thus, in Los Angeles,
the amount of liability payouts dropped from some $17 million in 2001 to a
more moderate amount of approximately $627,000 in 2009. 257
Comprehensive structural reform may thus pay for itself if properly
implemented. 258 Here, we emphasize again the importance of a local
commitment to compliance with governing law as a first step in creating
structural systems that can reduce the incidence of constitutional violations.
B. The Value of an Improved Signal
A substantial literature explores the relative value of rules and standards
in the regulation of human behavior. 259 Many find that rules have an
advantage over standards in that they can be applied by lower courts with a
fair degree of predictability. That, in turn, often allows the parties to
prospective litigation to apply the rules themselves and determine likely
outcomes without having to submit their claims to a court. Perhaps more
importantly, rules can more clearly shape private behavior, enabling the
parties to conform their actions to the law. Rules thus enjoy some support
across the ideological spectrum.260
Constitutional litigation suffers from a dearth of rules. The Fourth
Amendment prohibits unreasonable searches and seizures but offers little
guidance on the line that separates the reasonable from the unreasonable in

256 See Rushin, supra note 200, at 1378–96 (describing the content of the negotiated settlements
achieved in DOJ pattern-or-practice proceedings).
257 See id. at 1407 n.339.
258 See id. at 1406 (quoting a Detroit official who asserted that “the amount of money that we have
saved on lawsuits that we had endured for years . . . have paid for the cost of implementation of the
monitoring two or three times”).
259 See, e.g., FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF
RULE-BASED DECISION-MAKING IN LAW AND IN LIFE 135–67 (1991) (identifying fairness, reliance,
efficiency, stability, and coordination as reasons for rules); Isaac Ehrlich & Richard A. Posner, An
Economic Analysis of Legal Rulemaking, 3 J. LEGAL STUD. 257 app. at 281–86 (1974) (discussing the
economics of rules versus standards); Louis Kaplow, Rules Versus Standards: An Economic Analysis,
42 DUKE L.J. 557, 596–620 (1992) (exploring circumstances in which rules and standards are likely to
be preferable); Kathleen M. Sullivan, Foreword: The Justices of Rules and Standards, 106 HARV. L. REV.
22, 62–69 (1992) (summarizing arguments favoring rules based on equality, utility, liberty, and
democracy).
260 See, e.g., Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1184–86
(1989) (explaining that rules allow for more precision and that it is “possible to establish general rules,
no matter what theory of interpretation or construction one employs”).

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calibrating the use of force.261 Supreme Court decisions do little to make this
standard more rule-like, asking if the officers’ conduct was “‘objectively
reasonable’ in light of the facts and circumstances confronting them,”
including “the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight.”262 One might
have supposed that all this talk of reasonableness would have led the Court
to assign responsibility for the decision to a jury, properly charged as to the
various considerations that inform the reasonableness of the officer’s
conduct. But instead of relying on the jury, the Court has transferred the
decision to courts, making judgments about the clarity of established law
through the qualified immunity doctrine.263
Although judges applying qualified immunity set out in search of legal
clarity, the application of the doctrine has a well-known tendency to obscure
more than it enlightens. 264 Courts do not have any obligation to specify
controlling legal rules in the qualified immunity cases they adjudicate; they
can instead dismiss the claim on the basis that existing law does not clearly
establish that the officer’s actions were unlawful.265 Increasingly, courts take
this easy way out, ruling that the law, whatever it might be, lacks the clarity
to overcome a proffered immunity defense. 266 That, in turn, prevents the

261 See U.S. CONST. amend. IV. On the notoriously standard-like quality of the reasonableness test,
see Cynthia Lee, Reforming the Law on Police Use of Deadly Force: De-Escalation, Preseizure Conduct,
and Imperfect Self-Defense, 2018 U. ILL. L. REV. 629, 654–55 (characterizing the Court’s excessive force
cases as setting forth a standard that offers little guidance). For doubts that the Court’s turn to eighteenthcentury practice has infused its Fourth Amendment law with greater clarity or predictability, see David
A. Sklansky, The Fourth Amendment and Common Law, 100 COLUM. L. REV. 1739, 1809–13 (2000).
262 Graham v. Connor, 490 U.S. 386, 396–97 (1989); Plumhoff v. Rickard, 572 U.S. 765, 774 (2014);
Tennessee v. Garner, 471 U.S. 1, 7–11 (1985). On the way qualified immunity adds a second layer of
discretion to that already conferred by the prevailing constitutional standard, see Diana Hassel, Excessive
Reasonableness, 43 IND. L. REV. 117, 139–40 (2009). On the result, essentially rendering Fourth
Amendment excessive force protections illusory, see Osagie K. Obasogie & Zachary Newman, The Futile
Fourth Amendment: Understanding Police Excessive Force Doctrine Through an Empirical Assessment
of Graham v. Connor, 112 NW. U. L. REV. 1465, 1497–1500 (2018) (basing its futility finding on an
empirical assessment of the success of excessive force claims).
263 See Pearson v. Callahan, 555 U.S. 223, 232–34 (2009).
264 See John C. Jeffries, Jr., What’s Wrong with Qualified Immunity?, 62 FLA. L. REV. 851, 854
(2010) (describing the standards for identifying clear law as a “cumulation of debatability”).
265 Pearson, 555 U.S. at 234–36. For a more deferential restatement of the standard, see Malley v.
Briggs, 475 U.S. 335, 341 (1986) (noting that the doctrine protects “all but the plainly incompetent or
those who knowingly violate the law”).
266 See Nancy Leong, The Saucier Qualified Immunity Experiment: An Empirical Analysis, 36 PEPP.
L. REV. 667, 670 (2009) (finding that judicial avoidance decreased when courts were required to follow
the two-step approach of Saucier); Aaron L. Nielson & Christopher J. Walker, The New Qualified
Immunity, 89 S. CAL. L. REV. 1, 49 (2015) (finding that judges are less likely to decide constitutional
questions when the rights at issue are not clearly established).

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courts from actually giving articulate voice to the rules governing official
conduct and prevents juries from awarding damages to the victims of
unreasonable conduct.267 Officials, victims, government agencies, and lower
courts all operate in a shadow world where the content of the law recedes in
clarity and importance and the phantom construct of clearly established law
becomes the de facto liability rule. 268 The more closely courts attend to
immunity, the less work they do to clarify the law. Thus, scholars have
discussed the “degradation” of constitutional law that reduces “constitutional
protections to the least-common-denominator understanding of their
meaning.”269
Adoption of the type of state causes of action we propose can eliminate
qualified immunity from the calculus and restore the role of courts in
deciding cases by reference to the law rather than hiding behind, and
encouraging the growth of, a profound absence of clear law. By restoring the
law-saying capacity of the courts, both state and federal, adoption of reforms
will foster judicial articulation of rules to govern official conduct. The
resulting rules should offer the panoply of benefits that we have come to
associate with rule-based approaches to the regulation of behavior: greater
compliance with the law and more ready resolution of the claims that arise
when the government violates the rules. By facilitating litigation of claims
that might have failed under the immunity regime for want of established
law, moreover, these state law causes of action will encourage litigation in
new areas where the information-forcing value of discovery can help to
improve the performance of local governments.
A second benefit will accrue from the clarification of legal standards
that the elimination of qualified immunity for state law claims will foster. By
giving voice to the importance of compliance with the Constitution itself,
rather than with the increasingly nebulous construct of “clearly established
law,” reformers can help to encourage a culture of law compliance in the
relevant community.270 Scholars recognize that the simple articulation of a
new standard of legality may not achieve instantaneous or perfect

267

See Nielson & Walker, supra note 266, at 37–38 (finding, based on several studies that examine
qualified immunity decisions over time, that courts decided fewer constitutional questions after Pearson
overruled Saucier).
268 On the threat to constitutional values, see Jeffries, supra note 264, at 858 (maintaining that
restrictive approaches reduce the search for clearly established law “to something like a snipe hunt” where
immunity crowds out any damages liability for constitutional violations).
269 See John C. Jeffries, Jr., Reversing the Order of Battle in Constitutional Torts, 2009 SUP. CT.
REV. 115, 120–21.
270 For an account of the value of expressive law, see Thomas W. Merrill & Henry E. Smith, Optimal
Standardization in the Law of Property: The Numerus Clausus Principle, 110 YALE L.J. 1, 36–37 (2000)
(commenting on the communicative function of rules in property law).

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compliance. 271 But a skeptical, deterrence-inflected account seems too
simplistic, slighting both the expected operation of existing remedies
(through which any newly articulated legal rule will be made effective) and
the expressive value of law. Expressive theorists maintain that law can
induce compliance by offering information about community expectations
and by establishing a focal point around which people with disparate values
might coordinate their behavior.272 For expressive theorists, compliance does
not entail a simplistic cost–benefit calculus as in the standard law-andeconomics account of deterrence. 273 Nor does it result alone from law’s
perceived legitimacy and its moral claim on popular compliance. Instead, on
this view law induces compliance as people use legal norms as a way to
maximize their own interests through strategies of coordination.274 Law also
provides information about community values and standards. 275 The
powerful symbolism that surrounds expressive legislation and other legal
norms can have a profound impact on individual compliance with law that
simple deterrence theory cannot explain.
C. The Value of Taking Action
We need not reiterate here the value of government responsiveness to
the demands of constituents for a more just society. Political and social
scientists alike tell us that when people perceive public institutions as open,
transparent, and responsive, they tend to view those institutions more
favorably and provide diffuse support to government actors, thereby
enhancing general compliance with law. 276 Justice Brandeis explained the
dynamic almost one hundred years ago, noting that “[i]f the Government
becomes a lawbreaker, it breeds contempt for law; it invites every man to
271

One such skeptic, dubious about arguments favoring the consideration of the benefits of litigation
and broad discovery, views legal rules as functionally effective only to the extent they have been given
enforcement teeth. See Paul Stancil, Discovery and the Social Benefits of Private Litigation, 71 VAND. L.
REV. 2171, 2185 (2018) (arguing that Congress must not have “truly” meant to end discrimination, given
its failure to assign greater enforcement resources than proceedings before the EEOC).
272 See Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021, 2030–32
(1996); RICHARD H. MCADAMS, THE EXPRESSIVE POWERS OF LAW 5–7, 30–42 (2015).
273 See MCADAMS, supra note 272, at 2–4 (describing the deterrence theory and explaining how an
expressive theory “plausibly causes more of the compliance we observe than deterrence or legitimacy”
(emphasis omitted)).
274 See id. at 5–7.
275 See Sunstein, supra note 272, at 2032–33, 2043–44 (finding evidence that laws against
discrimination weakened the norm of racial discrimination even in the absence of enforcement). For
Sunstein, then, the passage of a prohibition against race-based discrimination may help to induce
compliance by letting the community know that members of Congress, reflecting the desires of their
constituents, have expressed the community’s disapproval of such behavior. See id. at 2043–44.
276 See Tom R. Tyler, Trust and Law Abidingness: A Proactive Model of Social Regulation, 81 B.U.
L. REV. 361, 378–79 (2001).

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become a law unto himself; it invites anarchy.”277 Monica Bell has argued
that this “legitimacy deficit” offers an incomplete description of the harms
that befall overpoliced communities and proposes instead that “[t]he theory
of legal estrangement provides a rounder, more contextualized
understanding of this relationship that examines the more general
disappointment and disillusionment felt by many African Americans and
residents of high-poverty urban communities with respect to law
enforcement.” 278 Legal estrangement results in an “anomie about law”: a
sense that one’s rights do not matter.279 The remedy is a legal system that is
well designed and properly enforced, which will “reassure community
members that society has not abandoned them, that they are engaged in a
collective project of making the social world.”280
Reformers understand the need to act quickly to secure important
changes. Over the summer of 2020, upwards of 450 bills were introduced
across the county, ranging from legislation to ban chokeholds to more
ambitious overhauls of police departments. 281 Members of Congress
considered many reform measures as well, including changes to Section
1983 that would have eliminated qualified immunity and authorized suits
against federal officials.282 But apart from some important accomplishments,
277

Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).
Monica C. Bell, Police Reform and the Dismantling of Legal Estrangement, 126 YALE L.J 2054,
2058, 2066 (2017).
279 Id. at 2085.
280 Id.
281 For example, for an account of Black Lives Matter (BLM) proposals in the District of Columbia,
see Martin Austermuhle, Here’s What Black Lives Matter D.C. Is Calling For, and Where the City Stands,
NPR (June 9, 2020), https://www.npr.org/local/305/2020/06/09/872859084/here-s-what-black-livesmatter-d-c-is-calling-for-and-where-the-city-stands [https://perma.cc/N5TK-KXN8] (identifying such
reforms as defunding the police, banning chokeholds, a ban on stop and frisk, an end to police in schools,
and the elimination of money bail). A number of states adopted chokehold limits of various kinds after
the death of George Floyd. For an account, see Harmeet Kaur & Janine Mack, The Cities, States and
Countries Finally Putting an End to Police Restraints, CNN (June 16, 2020, 6:24 AM), https://www.cnn.
com/2020/06/10/world/police-policies-neck-restraints-trnd/index.html [https://perma.cc/E9BF-AU2E].
For an account of the nationwide trends in the months after George Floyd was murdered, see Amber
Widgery, One Year After George Floyd’s Death, Work Continues on Policing Policy, NAT’L CONF. OF
STATE LEGISLATURES (May 20, 2021), https://www.ncsl.org/research/civil-and-criminal-justice/a-yearafter-death-of-george-floyd-work-continues-on-policing-policy-magazine2021.aspx [https://perma.cc/
2J8H-HUPS] (reporting that more than 3,000 bills had been proposed in state legislatures); States Race
to Pass Policing Reforms After Floyd’s Death, CNBC (Aug. 8, 2020, 10:58 AM), https://www.cnbc.com/
2020/08/08/states-race-to-pass-policing-reforms-after-floyds-death.html [https://perma.cc/3927-TJK8]
(reporting on the 450 bills introduced in the months following Floyd’s death according to a survey of
state laws conducted by the National Center on State Law).
282 See Catie Edmondson, House Passes Sweeping Policing Bill Targeting Racial Bias and Use of
Force, N.Y. TIMES (June 25, 2020), https://www.nytimes.com/2020/06/25/us/politics/house-policeoverhaul-bill.html [https://perma.cc/L7ET-UAD3] (noting the passage of the George Floyd Justice in
278

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particularly the legislation in Colorado and New Mexico, reform movements
have slowed or stalled.283 A New York Times article recalled that calls for
reform sounded loudly after Michael Brown’s death in Ferguson, Missouri
but led to little by way of concrete change.284 One senses a growing worry
that the moment for decisive political action may have slipped away. 285
Politicians and officials can help to allay those concerns, as the legislative
process continues, by taking action to bring about some of the changes that
we sketch here. Changes to the power to sue government officials are some
of the many avenues of reform that should be pursued. These changes might
restore some faith in the law as a tool for addressing systemic racism and
brutality that permeates the criminal legal system.
D. Experimentation and Evidence
If our federal system of government was designed in the eighteenth
century to preserve local control over the institutions of slavery, and if it has
often been used throughout our history to impede change at the federal level,
new options have become available at the local level in an era of partisan
division.286 One long and somewhat hackneyed version of federalism holds
Policing Act of 2020, which would eliminate qualified immunity, ban chokeholds, and reform other
aspects of local policing).
283 Reform efforts remain ongoing in a number of jurisdictions, including Oregon and Washington.
Major reform efforts in California, New York, and Texas stalled in the past year. See supra notes 7–11
and accompanying text.
284 See Shaila Dewan & Mike Baker, Rage and Promises Followed Ferguson, but Little Changed,
N.Y. TIMES (June 24, 2020), https://www.nytimes.com/2020/06/13/us/unrest-ferguson-policereform.html [https://perma.cc/VUW9-VWD9].
285 See id. (reporting that Valerie Castile, mother of police-shooting victim Philando Castile,
lamented at a panel after Floyd’s death that “we’ve covered everything you could possibly imagine about
what we should do and what we could do, but nothing is being implemented”). Yet even as the legislative
process grinds along, some see hope in the growing influence of BLM activists. See Kayla Reed & Blake
Strode, George Floyd and the Seeds of a New Kind of Activism, N.Y. TIMES (May 22, 2021), https://
www.nytimes.com/2021/05/22/opinion/george-floyd-protests-blm-movement.html
[https://perma.cc/
7QLW-KDGF]; Maya King, Black Lives Matter Power Grab Sets Off Internal Revolt, POLITICO (Dec.
10, 2020, 1:11 PM), https://www.politico.com/news/2020/12/10/black-lives-matter-organization-biden444097 [https://perma.cc/Y6CC-AFQT] (describing growing power of and internal tensions within the
BLM movement).
286 On slavery and constitutionalism, see Juan F. Perea, Race and Constitutional Law Casebooks:
Recognizing the Proslavery Constitution, 110 MICH. L. REV. 1123, 1137–38 (2012) (quoting the
convention speeches of Madison and Ellsworth in favor of regarding slavery as a local matter rather than
one of national concern). For an account of what he terms the “federal consensus” of the Founding Era,
see WILLIAM M. WIECEK, THE SOURCES OF ANTISLAVERY CONSTITUTIONALISM IN AMERICA, 1760–
1848, at 94–95 (1977) (quoting the statement of South Carolina Senator William Loughton Smith, made
in response to the abolition petitions that flooded Congress in 1790, that “the toleration of slavery in the
several States was a matter of internal regulation and policy, in which each State had a right to do as she
pleases, and no other State had any right to intermeddle with her policy or laws”). For the possibility that

803

NORTHWESTERN UNIVERSITY LAW REVIEW

up the states as laboratories (or petri dishes) of democracy, where reformminded politicians can experiment with new approaches to social
problems.287 In favor of such experimentation, political theorists have argued
that the trial of reforms at the state level can provide evidence of the reform’s
success (or failure), without committing the whole nation to its untested
adoption. One might see workers’ compensation laws as one example among
many of reforms that proved their worth at the state level.288
State and local changes in the ecosystem of civil right enforcement can
provide the foundation for a similar assessment of the wisdom and financial
workability of the package of reforms offered above. Critics worry that
reforms to curtail qualified immunity will trigger an upsurge in successful
excessive force and other constitutional litigation, threatening the budgets of
local governments. We have explained that a proper package of systemic
changes can forestall some of the anticipated litigation by limiting the
number of constitutionally dubious police interactions with local citizens and
using what litigation does occur as a way to bring attention (and change) to
problematic practices. With the implementation of reforms in some
jurisdictions, more reticent governments and officials in other parts of the
country might monitor their impact and evaluate their suitability for adoption
more widely. We expect that they will find that these adjustments do not
create the devastating outcomes critics fear—and that these changes will, in
fact, improve accountability and restore faith in government.
E. Feasibility
Perhaps most importantly, the changes we propose here do not depend
on the ability of reformers to surmount the long and familiar list of barriers
to the enactment of national legislation. Nor do they turn on the ability of
litigants to persuade members of the Supreme Court to revisit a set of
doctrines that they may regard as settled. The Colorado reforms were

a new federalism might create space for progressive policy initiatives, see Heather K. Gerken & Joshua
Revesz, Progressive Federalism: A User’s Guide, DEMOCRACY (2017), https://democracyjournal.org/
magazine/44/progressive-federalism-a-users-guide/ [https://perma.cc/B833-4U2N].
287 The oft-quoted reference to the states as laboratories of democracy in New State Ice Co. v.
Liebman, 285 U.S. 262, 311 (1932) (Brandeis J., dissenting), exerts a powerful ongoing influence on legal
scholars. For an account of federalism that encompasses its many faces, see generally Amar, Five Views
of Federalism, supra note 142 (describing the “converse-1983” model and competing conceptions of
federalism).
288 On the coalition of workers, employers, and social reformers who supported workers’
compensation at the state level during the progressive era, see Price v. Fishback & Shawn Everett Kantor,
The Adoption of Workers’ Compensation in the United States, 1900–1930, 41 J.L & ECON. 305, 319
(1998) (quoting a student of workers’ compensation to the effect that “[n]o other kind of labor legislation
gained such general acceptance in so brief a period in this country”).

804

116:737 (2021)

New Federalism and Civil Rights Enforcement

speedily adopted with near unanimous support in both chambers.289 Similarly
sweeping changes have run into headwinds here and there, but legislation
can move through state and local assemblies without necessarily confronting
the threat of a filibuster or presidential veto. Many of the other changes we
identify do not require state legislative support but can be adopted at the local
level through ordinance or executive changes in policy. Such local reforms
have one clear-cut advantage over national proposals—they can be
accomplished now, without waiting on Congress or the Supreme Court to
act.
CONCLUSION
Arguments for reform of local institutions, including police
departments, have taken on new urgency. Much work must be done at the
departmental level to rethink the role of the police in modern city life and
reduce the level of violence. But the reform of local institutions should
include changes in the system of civil rights enforcement, changes that would
eliminate qualified immunity, ensure compensation for the victims of
government wrongdoing, and guarantee that the rules of law enunciated in
such litigation are more effectively communicated to responsible officers
and departments through appropriate budgeting and indemnification
practices. Rather than waiting on federal actors to implement such reforms,
and thereby effectively acquiescing in the gridlock of a divided government,
officials at the state and local levels should take responsibility for improving
the institutions they manage. Progress may be slow and incremental. But
steps to clarify and enforce constitutional norms, long overdue, must be a
part of the reform agenda of officials at every level of government who
believe in building a more just society.

289 See Jesse Paul & Jennifer Brown, Colorado Governor Signs Sweeping Police Accountability Bill
into Law. Here’s How It Will Change Law Enforcement., COLO. SUN (June 19, 2020, 9:53 AM), https://
coloradosun.com/2020/06/19/colorado-police-accountability-bill-becomes-law/ [https://perma.cc/7ENPTQK5] (explaining that the bill was passed two weeks after being introduced); Jay Schweikert, Colorado
Passes Historic, Bipartisan Policing Reforms to Eliminate Qualified Immunity, CATO INST. (June 22,
2020, 11:31 AM), https://www.cato.org/blog/colorado-passes-historic-bipartisan-policing-reformseliminate-qualified-immunity [https://perma.cc/FQ73-UF7K] (reporting that the Colorado bill was
approved by the house by a vote of 52–13 and the senate by a vote of 32–1).

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NORTHWESTERN UNIVERSITY LAW REVIEW

APPENDIX A: SURVEY OF STATE LAW REGARDING CAUSES OF ACTION FOR
CONSTITUTIONAL VIOLATIONS
TABLE A1: STATES WITH NEITHER A STATUTORY NOR A JUDICIALLY IMPLIED
CAUSE OF ACTION
State
Alabama

Status
No cause of
action

Alaska

No cause of
action

Arizona

Open question

Delaware

No cause of
action

Florida

No cause of
action

Georgia

No cause of
action

Hawaii

No cause of
action

Idaho

No cause of
action

Illinois

No cause of
action

Indiana

No cause of
Action

806

Sources and Comments
Matthews v. Ala. Agric. & Mech. Univ., 787 So. 2d 691, 698 (Ala.
2000).
Alaska courts have held that they will not imply a cause of action if
alternative remedies exist and also have found that Section 1983 is an
alternative remedy that precludes finding an implied right of action
under the state constitution. See State Dep’t of Corr. v. Heisey,
271 P.3d 1082, 1096–97 (Alaska 2012); Lowell v. Hayes, 117 P.3d
745, 753 (Alaska 2005).
Although courts in Arizona have stated that it is an open question, no
court has ever found an implied cause of action under the state
constitution. See Fred Nackard Land Co. v. City of Flagstaff, 238 P.3d
149, 160–61 (Ariz. Ct. App. 2010) (depublished).
Schueller v. Cordrey, No. N14C–10–201 EMD, 2017 WL 568344, at
*2 (Del. Super. Ct. Feb. 13, 2017).
Fernez v. Calabrese, 760 So. 2d 1144, 1146 (Fla. Dist. Ct. App. 2000);
Garcia v. Reyes, 697 So. 2d 549, 549–50 (Fla. Dist. Ct. App. 1997) (per
curiam); Pinto v. Collier County, No. 2:19-cv-551-FtM-60MRM,
2020 WL 2219185, at *7 (M.D. Fla. May 7, 2020).
Lathrop v. Deal, 801 S.E.2d 867, 881 (Ga. 2017).
Figueroa ex rel. Figueroa v. State, 604 P.2d 1198, 1206–07 (Haw.
1979); Browne v. City of Honolulu, No. 19-cv-00460-DKW-KJM,
2019 WL 5088737, at *2 (D. Haw. Oct. 10, 2019).
Dreyer v. Idaho Dep’t of Health & Welfare, 455 F. Supp. 3d 938, 944
(D. Idaho 2020); Johnson v. City of Caldwell, No. 1:13–CV–00492–
EJL–CWD, 2015 WL 5319012, at *17 (D. Idaho Sept. 11, 2015) (citing
cases).
Although one intermediate appellate court in Illinois suggested the
existence of a Bivens-type action for search and seizure, see Newell v.
City of Elgin, 340 N.E.2d 344, 348–49 (Ill. App. Ct. 1976), no Illinois
courts appear to have ever squarely held that a private right of action
exists under the state constitution, see White v. Madison County, No.
07-CV-716-MJR, 2008 WL 539230, at *6 (S.D. Ill. Feb. 26, 2008)
(collecting cases).
Smith v. Ind. Dep’t of Corr., 871 N.E.2d 975, 985–86 (Ind. Ct. App.
2007); Orr v. Ferebee, No. 1:16-cv-02610-RLY-DML, 2017 WL
1509309, at *2 (S.D. Ind. Apr. 27, 2017).

116:737 (2021)
State
Kansas
Kentucky

Status
No cause of
action
No cause of
action

Minnesota

No cause of
action

Missouri

No cause of
action

Nebraska

No cause of
action

Nevada

Open question

New
Hampshire

No cause of
action

North
Dakota

No cause of
action

Ohio

No cause of
action

New Federalism and Civil Rights Enforcement
Sources and Comments
Prager v. State Dep’t of Revenue, 20 P.3d 39, 63–64 (Kan. 2001);
Youngblood v. Qualls, 308 F. Supp. 3d 1184, 1203 (D. Kan. 2018).
St. Luke Hosp., Inc. v. Straub, 354 S.W.3d 529, 536–38 (Ky. 2011).
Danforth v. Eling, No. A10-130, 2010 WL 4068791, at *6 (Minn. Ct.
App. Oct. 19, 2010); Haynes v. Iten, No. 17-cv-5217 (DSD/HB),
2019 WL 5149818, at *8 (D. Minn. July 19, 2019), report and
recommendation adopted by No. 17-5217 (DSD/HB), 2019 WL
4746513 (D. Minn. Sept. 30).
Collins–Camden P’ship, v. County of Jefferson, 425 S.W.3d 210, 213–
14 (Mo. Ct. App. 2014).
NEB. REV. STAT. § 20-148 (2021) authorizes suits for the “deprivation
of any rights, privileges or immunities secured by the United States
Constitution or the Constitution . . . of the State of Nebraska,” but
courts have uniformly interpreted it to be a “procedural” statute that
does not confer a right of action. See Potter v. Bd. of Regents of the
Univ. of Neb., 844 N.W.2d 741, 749–50 (Neb. 2014).
No court has ever held that there is an implied right of action under the
Nevada constitution, but it has not been completely foreclosed.
Compare Janda v. City of Henderson, No. 2:05-cv-00841-LDG (LRL),
2006 WL 8442837, at *2 (D. Nev. Sept. 28, 2006) (granting motion to
dismiss because plaintiffs offered no argument for whether a private
right of action existed under the Nevada constitution), with Lopez v.
Homan, No. 3:19-cv-00098-RCJ-WGC, 2020 WL 3949260, at *9 (D.
Nev. May 11, 2020) (“[T]here does not seem to be authority that an
inmate cannot argue a conditions of confinement claim under Nevada’s
Constitution.”), report and recommendation adopted by No. 3:19-CV00098-RCJ-CLB, 2020 WL 3956297 (D. Nev. July 9).
Marquay v. Eno, 662 A.2d 272, 282–83 (N.H. 1995); Rockhouse
Mountain Prop. Owners Ass’n v. Town of Conway, 503 A.2d 1385,
1387–88 (N.H. 1986); Ali v. N. NH Corr. Facility, No. 12–cv–364–SM,
2013 WL 3367098, at *4 (D.N.H. July 3, 2013).
Although the North Dakota Supreme Court has recognized that courts
may imply a damages action for constitutional violations, no court has
every held that such a remedy exists. See Kristensen v. Strinden,
343 N.W.2d 67, 70 (N.D. 1983); Nagel v. City of Jamestown, 952 F.3d
923, 935 (8th Cir. 2020).
Provens v. Stark Cnty. Bd. of Mental Retardation & Developmental
Disabilities, 594 N.E.2d 959, 961 (Ohio 1992); Williams v. Nice, 58 F.
Supp. 3d 833, 839–40 (N.D. Ohio 2014), aff’d sub nom. Williams v.
Morgan, 652 F. App’x 365 (6th Cir. 2016).

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NORTHWESTERN UNIVERSITY LAW REVIEW
State

Status

Oregon

No cause of
action

Pennsylvania

No cause of
action

South
Carolina

No cause of
action

South
Dakota

Open question

Tennessee

No cause of
action

Washington

No cause of
action

Wyoming

No cause of
action

808

Sources and Comments
Barcik v. Kubiaczyk, 895 P.2d 765, 775 (Or. 1995) (en banc); Hunter v.
City of Eugene, 787 P.2d 881, 882–83 (Or. 1990); Gooding v.
Zuercher, No. 3:18-cv-00015-YY, 2018 WL 4658710, at *4 (D. Or.
July 23, 2018), report and recommendation adopted by No. 3:18-cv00015-YY, 2018 WL 4658828 (D. Or. Sept. 27).
Jones v. City of Philadelphia, 890 A.2d 1188, 1208 (Pa. Commw. Ct.
2006); Hamilton v. Spriggle, 965 F. Supp. 2d 550, 576–77 (M.D. Pa.
2013).
Palmer v. State, 829 S.E.2d 255, 261 (S.C. Ct. App. 2019); Shuler v.
Orangeburg Cnty. Sheriff’s Dep’t, No. 5:19-88-MGL-PLG, 2019 WL
9341416, at *5 (D.S.C. July 8, 2019), report and recommendation
adopted by No. 5:19-00088-MGL, 2020 WL 1933781 (D.S.C. Apr. 22,
2020), appeal filed sub nom. Shuler v. Orangeburg Cnty. Sheriff, No.
20-6778 (4th Cir. May 28).
South Dakota courts have not addressed the existence of the underlying
cause of action because of the state’s far reaching immunity doctrines.
See Est. of Johnson v. Weber, 898 N.W.2d 718, 732–34 (S.D. 2017)
(declining to find cause of action for violation of state due process
clause under facts of case, but appearing to contemplate damages
actions for state constitutional provisions that are “self-executing”).
Odom v. Claiborne County, 498 S.W. 3d 882, 887–89 (Tenn. Ct. App.
2016).
In general, if common law provides an adequate remedy for an injury,
the Washington Supreme Court has declined to extend a private right of
action unless there is some augmentative legislation creating such a
right. See Blinka v. Wash. State Bar Ass’n, 36 P.3d 1094, 1102 (Wash.
Ct. App. 2001); Dormaier v. City of Soap Lake, No. 2:19-CV-00354SAB, 2020 WL 6687356, at *7 (E.D. Wash. Nov. 12, 2020) (“The
Washington Supreme Court has held repeatedly that the Washington
State Constitution does not automatically create an implied private right
of action for constitutional violations.” (citing Reid v. Pierce County,
961 P.2d 333 (Wash. 1998) (en banc))), appeal dismissed, No. 2036012, 2021 WL 650784 (9th Cir. Feb. 12, 2021).
Cooney v. Park County, 792 P.2d 1287, 1299–1301 (Wyo. 1990),
vacated on other grounds sub nom. Cooney v. White, 501 U.S. 1201
(1991) (mem.).

116:737 (2021)

New Federalism and Civil Rights Enforcement

TABLE A2: STATES WITH A STATUTORY OR JUDICIALLY IMPLIED CAUSE OF ACTION
State
Arkansas

Status
Statutory cause of action for
violation of state constitutional
rights, with attorneys’ fees and
qualified immunity defense

California

Statutory cause of action for
violations of federal or state
constitutional rights (limited),
with attorneys’ fees and no
qualified immunity

Colorado

Statutory cause of action for
violation of state constitutional
rights (limited), with attorneys’
fees and no qualified immunity

Connecticut

Implied cause of action limited
to search and seizure and false
arrest, with qualified immunity;
statutory cause of action for
violations of state constitution
(limited), with qualified
immunity and limited right to
attorneys’ fees

Iowa

Implied cause of action for
searches and seizures, due
process, and equal protection,
with qualified immunity

Sources and Comments
ARK. CODE ANN. § 16-123-105 (2021); Robinson v.
Langdon, 970 S.W.2d 292, 296 (Ark. 1998)
(requiring courts to apply federal qualified immunity
doctrine).
CAL. CIV. CODE § 52.1(c) (West 2021) (creating
cause of action for interference with constitutional
rights through violence or the threat of violence).
Section 52.1(c) has been interpreted to require
officers have a specific intent to violate
constitutional rights. See Reese v. County of
Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018).
But no qualified immunity defense has been
recognized. See Venegas v. County of Los Angeles,
63 Cal. Rptr. 3d 741, 752–53 (Ct. App. 2007). We
note that the Supreme Court of California has
recognized the possibility of an implied right of
action for constitutional violations that fall outside of
Section 52.1 See Katzberg v. Regents of the Univ. of
Cal., 58 P.3d 339, 350 (Cal. 2002) (setting forth
framework for determining whether damages action
should be implied from state constitution).
COLO. REV. STAT. § 13-21-131 (2021) (applying only
to a “peace officer” employed by a “local
government”).
Connecticut courts have recognized an implied cause
of action for constitutional claims involving search
and seizure and arrest. See Binette v Sabo, 710 A.2d
688, 693–94 (Conn. 1998). Connecticut also recently
created a statutory cause of action for violations of
the state constitution by police officers, with
immunity where officer held an “objectively good
faith belief” that conduct did not violate the law.
CONN. GEN. STAT. § 52-571k (2021). Attorneys’ fees
may be awarded if the conduct was deliberate or
reckless, and indemnification will be denied if
officer acted with malice. Id.
Godfrey v. State, 898 N.W.2d 844, 846–47 (Iowa
2017) (due process and equal protection violations);
Baldwin v. City of Estherville, 915 N.W.2d 259,
260–61 (Iowa 2018).

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NORTHWESTERN UNIVERSITY LAW REVIEW
State

Louisiana

Status
Implied cause of action limited
to right to privacy (including
unreasonable searches and
seizures), with qualified
immunity

Maine

Statutory cause of action for
violations of state and federal
constitutions (limited), with
attorneys’ fees and qualified
immunity

Maryland

Implied right of action for
violations of equal protection,
due process and search and
seizure, with qualified
immunity for discretionary acts

Massachusetts

Statutory cause of action for
violation of federal or state
constitution (limited), with
attorneys’ fees and qualified
immunity

Michigan

Implied right of action against
the state, limited to due process
violations

Mississippi

Implied cause of action limited
to search and seizure

810

Sources and Comments
LA. CONST art. I, § 5; Moresi v. State ex rel. Dep’t of
Wildlife & Fisheries, 567 So. 2d 1081, 1093 (La.
1990); Miller v. Village of Hornbeck, 65 So. 3d 784,
787–88 (La. Ct. App. 2011).
ME. STAT. tit. 5, § 4682(1)(A) (2021) (limiting cause
of action to intentional interference with
constitutional rights, by physical force or violence or
threats of physical force or violence); id. § 4683
(providing for attorneys’ fees); Clifford v.
MaineGeneral Med. Ctr., 91 A.3d 567, 588–89 (Me.
2014) (applying qualified immunity).
D’Aoust v. Diamond, 36 A.3d 941, 962 (Md. 2012)
(qualified immunity); Manikhi v. Mass Transit
Admin., 758 A.2d 95, 110–11 (Md. 2000) (equal
protection); Widgeon v. E. Shore Hosp. Ctr.,
479 A.2d 921, 929–30 (Md. 1984) (due process and
search and seizure).
MASS. GEN. LAWS ANN. ch. 12, §§ 11H–11I (2020)
(providing a cause of action for violation of
constitutional right through threats, intimidation, or
coercion); Duarte v. Healy, 537 N.E.2d 1230, 1232
(Mass. 1989) (applying qualified immunity).
Mays v. Governor, 954 N.W.2d 139, 161–62 (Mich.
2020) (en banc) (holding state and state officials may
be liable for state substantive due process violation
because the Flint water poisoning victims had no
alternative remedy and the state’s actions were
shocking to the conscience); Jones v. Powell,
612 N.W.2d 423, 426–27 (Mich. 2000) (per curiam)
(concluding there is no inferred damages remedy for
a violation of the state constitution against a
municipality or individual government employee
because Section 1983 provides an adequate remedy);
Smith v. Dep’t of Pub. Health, 410 N.W.2d 749,
787–90 (Mich. 1987) (declining to recognize a
damages remedy for equal protection and due
process violations), aff’d sub nom. Will v. Mich.
Dep’t of State Police, 491 U.S. 58 (1989).
Mayes v. Till, 266 So. 2d 578, 580–81 (Miss. 1972)
(allowing suit for nominal and actual damages to
property arising from an unlawful search).

116:737 (2021)
State
Montana

New Federalism and Civil Rights Enforcement

Status
Implied cause of action limited
to due process violations,
privacy, and search and seizure,
with no qualified immunity

New Jersey

Statutory cause of action for
violations of federal and state
constitutions, with attorneys’
fees and qualified immunity

New Mexico

Statutory cause of action, with
discretionary attorneys’ fees
and no qualified immunity

New York

Implied cause of action limited
to equal protection and search
and seizure

North Carolina

Implied cause of action, with
qualified immunity an open
question

Sources and Comments
Dorwart v. Caraway, 58 P.3d 128, 137 (Mont. 2002).
N.J. STAT. ANN. § 10:6-2 (2021); Morillo v. Torres,
117 A.3d 1206, 1215 (N.J. 2015) (applying federal
qualified immunity standard to claims brought under
the statute); see also Harz v. Borough of Spring
Lake, 191 A. 3d 547, 555 (N.J. 2018) (holding the
statute only provides a remedy for violation of
substantive, not procedural, rights).
The New Mexico Civil Rights Act creates a cause of
action for violations of the state constitution, with
discretionary attorneys’ fees, no qualified immunity,
and guaranteed indemnification. See H.B. 4, 55th
Leg., 2021 Reg. Sess. § 3 (N.M. 2021).
Brown v. State, 674 N.E.2d 1129, 1138–39 (1996)
(authorizing civil action to recover damages against
the state for violation of the Equal Protection and
Search and Seizure Clauses of the State
Constitution).
Craig ex rel. Craig v. New Hanover Cnty. Bd. of
Educ., 678 S.E.2d 351, 354 (N.C. 2009) (recognizing
cause of action for violation of right to education);
Corum v. Univ. of N.C. ex rel. Bd. of Governors,
413 S.E.2d 276, 289–90 (N.C. 1992) (recognizing
cause of action for free speech); Midgett v. N.C.
State Highway Comm’n, 132 S.E.2d 599, 608 (N.C.
1963) (“[W]here the Constitution points out no
remedy and no statute affords an adequate remedy
under a particular fact situation, the common law
will furnish the appropriate action for adequate
redress of such grievance.”), overruled on other
grounds by Lea Co. v. N.C. Bd. of Transp.,
304 S.E.2d 164 (N.C. 1983); Sale v. State Highway
& Pub. Works Comm’n, 89 S.E.2d 290, 295–98
(N.C. 1955) (recognizing a cause of action under the
state due process clause). Qualified immunity is an
open question. See Matthew R. Gauthier, Kicking
and Screaming: Dragging North Carolina’s Direct
Constitutional Claims into the Twenty-First Century,
95 N.C. L. REV. 1735, 1747–48 (2017).

811

NORTHWESTERN UNIVERSITY LAW REVIEW
State

Oklahoma

Status
Implied right of action for
excessive force and for
detention beyond the expiration
of one’s sentence (limited to
claims arising prior to April 21,
2014)

Sources and Comments
Payne v. Kerns, 2020 OK 31, ¶ 14, 467 P.3d 659,
665–66 (finding limited implied private right of
action for claims based on excessive force or
unlawful detention). Oklahoma’s legislature
abrogated the implied cause of action for any claims
accruing on or after April 21, 2014. See id.
Bandoni v. State, 715 A.2d 580, 594–95 (R.I. 1998);
Pellegrino v. R.I. Ethics Comm’n, 788 A.2d 1119,
1128 (R.I. 2002) (Flanders, J., concurring) (citing
Bandoni and arguing that the takings clause “is a
self-executing provision of our Constitution that
needs no supplemental legislation to create a private
cause of action for damages”).
City of Beaumont v. Bouillion, 896 S.W.2d 143, 147
(Tex. 1995) (rejecting implied cause of action for
free speech and free assembly sections of the Texas
constitution); Frasier v. Yanes, 9 S.W.3d 422, 425–
26 (Tex. App. 1999) (recognizing cause of action for
certain self-enacting provisions that provide specific
textual entitlement to compensation, such as the
takings clause).

Rhode Island

Implied cause of action limited
to self-executing provisions

Texas

Implied cause of action limited
to self-enacting provisions that
provide textual entitlement to
compensation

Utah

Implied right of action limited
to rights that are self-executing
and where the constitutional
violation is flagrant, existing
remedies do not redress the
injury, and equitable relief will
not redress the injuries

For a violation to be “flagrant,” “a defendant must
have violated ‘clearly established’ constitutional
rights ‘of which a reasonable person would have
known.’” Spackman ex rel. Spackman v. Bd. of
Educ., 16 P.3d 533, 538 (Utah 2000) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

Implied right of action limited
to common benefits, search and
seizure, freedom of speech and
of the press

Zullo v. State, 205 A.3d 466, 484 (Vt. 2019)
(holding private right of action for money damages
is available for violations of the search and seizure
provision); Shields v. Gerhart, 658 A.2d 924, 928–30
(Vt. 1995) (holding that a general provision
guaranteeing a right to enjoy life was not selfexecuting but that the specific guarantee of right to
free speech was self-executing).

Vermont

812

116:737 (2021)

New Federalism and Civil Rights Enforcement

State

Status

Virginia

Implied cause of action for due
process, specifically property
deprivation

West Virginia

Implied cause of action for due
process violations, with
qualified immunity

Wisconsin

Implied cause of action limited
to due process

Sources and Comments
Kitchen v. City of Newport News, 657 S.E.2d 132,
140 (Va. 2008) (recognizing damages action for
violation of Article I, Section 11 of the Virginia
Constitution, a “self-executing” protection against
the taking of private property without just
compensation); Graham v. Mitchell, 529 F. Supp.
622, 625 (E.D. Va. 1982) (summarizing case law
providing right of action for deprivation of property
without due process).
Hutchison v. City of Huntington, 479 S.E.2d 649,
660 (W. Va. 1996); see also Fields v. Mellinger,
851 S.E.2d 789, 791–99 (W. Va. 2020) (reviewing
jurisprudence and rejecting implied cause of action
for violation of search and seizure provisions of state
constitution); W. Va. Bd. of Educ. v. Marple,
783 S.E.2d 75, 84–85 (W. Va. 2015) (holding that
qualified immunity is available as defense against
due process claim brought under the state
constitution).
Old Tuckaway Assocs. Ltd. P’ship v. City of
Greenfield, 509 N.W.2d 323, 328 n.4 (Wis. Ct. App.
1993).

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APPENDIX B: PROPOSED MODEL STATE STATUTE CREATING A CAUSE OF
ACTION FOR CONSTITUTIONAL VIOLATIONS
a. Private right of action.
1. Every person who, under color of any statute, ordinance,
regulation, custom, or usage of the [State, County, or City] of [],
subjects any person to the deprivation of any rights, privileges,
or immunities secured by the federal or state Constitution or
laws, shall be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for redress.290
2. Qualified immunity and other state statutory or judicially
created immunities do not apply to claims brought pursuant to
this section. 291 It is not an immunity or defense to an action
brought under this section that:
A. the rights, privileges, or immunities sued upon were not
clearly established at the time of the act, omission, or
decision by the person or public entity; or
B. at such time, the state of the law was such that the person
or public entity could not reasonably have been
expected to know whether such act, omission, or
decision was lawful.292
3. In an action under this section, the state itself as well as arms of
the state, state subdivisions, counties, cities, and other publicentity employers shall be liable as persons for violations of
subsection (1). Such public-entity persons shall be:
A. vicariously liable if the unlawful conduct causing the
injury was within the scope of a natural person’s
employment; and293

290 This language tracks Colorado’s Senate Bill 20-217. See 73rd Gen. Assemb., 2d Reg. Sess. § 3
(Colo. 2020) (codified at COLO. REV. STAT. § 13-21-131(1) (2021)). There are two notable differences:
Colorado’s statute applies only to peace officers and concerns violations only of the state constitution.
Our proposed model statute applies to all people acting under color of state law and concerns violations
of the state and federal constitutions.
291 This language tracks Colorado’s Senate Bill 20-217. See COLO. REV. STAT. § 13-21-131(2)(b).
292 The language tracks Washington’s proposed bill. See H.B. 1202, 67th Leg., 2021 Reg. Sess.
§ 3(5) (Wash. 2021).
293 Washington’s proposed House Bill 1202 has alternative language: “In an action . . . under [this]
section, the plaintiff may also name the officer’s employer as a defendant. The employer is vicariously
liable if the unlawful conduct causing the injury was within the scope of the . . . officer’s employment.”
Id. § 3(2).

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New Federalism and Civil Rights Enforcement

B. liable for any violations of this section caused by a
regulation, custom, usage, practice, procedure, or policy
approved or condoned by such entity or by such entity’s
failure to use reasonable care in hiring, training,
retaining, supervising, or disciplining its employees.294
Upon a finding of liability on the part of such publicentity persons, a natural person named as a defendant
under subsection (1) of this section shall not be
personally liable for actions in substantial compliance
with a regulation, practice, procedure, or policy that was
established by the employer or approved or condoned
by superior officers.295
b. Attorney general investigation and cause of action.
The attorney general may investigate municipalities and public
entities and their employees suspected of engaging in a pattern or
practice of violations of the federal and state Constitutions or laws
and bring an action in the name of the State, or as parens patriae on
behalf of persons residing in the state, to restrain and prevent this
pattern or practice of unconstitutional or illegal conduct.296
c. Attorneys’ fees.
In any action or proceeding to enforce this section, a prevailing
plaintiff shall be entitled to reasonable attorneys’ fees as part of the
costs, and the court, in its discretion, may include expert fees as part
of the attorneys’ fees.297 For the purposes of this subsection, the term
“prevailing” includes a plaintiff whose commencement of litigation
has acted as a catalyst to effect policy change on the part of the
defendant, regardless of whether that change has been implemented
voluntarily, implemented as a result of a settlement, or implemented
as a result of a judgment in such plaintiff’s favor. If the defendant
prevails in such an action, the court may award reasonable attorney
fees and costs if the court finds the action to have been frivolous.

294 This language tracks Washington’s proposed House Bill 1202, see id. § 3(3), and is also drawn
from a proposed Virginia bill, see H.B. 2045, 2021 Sess. (Va. 2021).
295 This language tracks Washington’s proposed bill. See Wash. H.B. 1202 § 3(3).
296 This language is drawn from Washington’s proposed statute. See id. § 5.
297 This language is drawn from Washington’s proposed statute, see id. § 4, as well as a statute that
was proposed in Virginia, see Va. H.B. 2045.

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d. Indemnification.
A state, county, municipality, or other public entity shall indemnify
its employees for any liability incurred and for any judgment or
settlement entered against them for claims arising pursuant to this
section; except that, if the employer determines that the employee
did not act upon a good faith and reasonable belief that the action
was lawful, then the employee is personally liable and shall not be
indemnified by the employer for 5% of the judgment or settlement
or twenty-five thousand dollars, whichever is less. Notwithstanding
any provision of this section to the contrary, if the employee’s
portion of the judgment is uncollectible from the employee, the
employer or insurer shall satisfy the full amount of the judgment or
settlement.298
e. Preservation of rights.
This section shall be in addition to all rights, procedures, and
remedies available under the United States Constitution; Section
1983 of Title 42 of the United States Code; the Constitution of the
State of []; and all other federal law, state law, law of the City of [],
or the [] Administrative Code; and all preexisting civil remedies,
including monetary damages, created by statute, ordinance,
regulation, or common law.
f.

Jurisdiction; waiver of sovereign immunity.
An action brought to enforce the provisions of this section may be
brought in any court of competent jurisdiction. The state itself as
well as arms of the state, political subdivisions, counties, cities, and
other public entities shall be subject to suit and to the imposition of
liability as a person or public entity under this section,
notwithstanding any immunities from suit conferred by state or
federal law.

298 This language is drawn from Colorado Senate Bill 20-217. We have omitted the final sentence of
Colorado’s indemnification provision, which provides that “[a] public entity does not have to indemnify
a[n employee] if the [employee] was convicted of a criminal violation for the conduct from which the
claim arises.” COLO. REV. STAT. § 13-21-131 (2021). In our view, indemnification should be mandated
so long as the employee was acting in the course and scope of the employment.

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