at least three different ways: in civil litigation filed by a private plaintiff (or a class of plaintiffs) against an officer or agency; in civil litigation filed by the Department of Justice against an agency; and in federal criminal prosecutions against individual officers. Consider the following examples: A plaintiff files a lawsuit in federal court, alleging that an officer used excessive force in the course of making an arrest. A federal prosecutor files criminal charges against a police officer, alleging that the officer’s use of force during the arrest constituted a crime. Attorneys in the Civil Rights Division of the US Department of Justice file a lawsuit alleging that officers at the police department have engaged in a pattern and practice of violating constitutional rights by using excessive force. In each case, the investigators, lawyers, judges, and jurors will be called upon to assess the use of force by applying the constitutional standard.
Civil “Excessive Force” Litigation under 42 U.S.C. § 1983 and Bivens
When an officer uses force against an individual, the subject can file a lawsuit alleging that the officer violated the Fourth Amendment. The Fourth Amendment itself sets out the substantive right to be free from unreasonable seizures, but it does not provide what is known as a “cause of action”—the basis of the legal argument that a plaintiff makes when filing a lawsuit. Instead, federal civil lawsuits are authorized by a federal statute and a Supreme Court case.
The federal statute, 18 U.S.C. § 1983, states, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other 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[.]
That statute applies to state and local officials, including police officers, but not to federal officials. A Supreme Court case, Bivens v. Six Unknown, Named Agents of Federal Bureau of Narcotics,5 held that federal officers were similarly subject to liability for constitutional violations, including Fourth Amendment violations. A complete discussion of the fascinating history and many nuances of § 1983 and Bivens is beyond the scope of this book. For our purposes, it suffices to say that, together, they potentially render liable any police officer who uses or abuses their authority in ways that violate an individual’s constitutional rights, including uses of force that violate the Fourth Amendment.
Confusingly, a plaintiff can bring a § 1983 claim—that is, a claim brought under federal law—in either federal or state court.6 Either way, the court will have to apply the constitutional standard to determine whether the officer’s actions violate the Fourth Amendment. The plaintiff in such a suit, if successful, can ask the court to award different remedies. The three most common remedies are compensatory damages, punitive damages, and injunctive relief.
Compensatory damages are a monetary payment “intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant’s wrongful conduct.”7 Compensatory damages are awarded to cover the costs of physical injuries and psychological injuries as well as tangible harms (such as damaged property) and intangible, but quantifiable harms (such as lost earnings).
Punitive damages are intended to punish a defendant’s misconduct and deter the defendant, and others in the defendant’s position, from engaging in such actions in the future. Not every case in which compensatory damages are awarded will also result in punitive damages; the Supreme Court has strongly suggested that courts can award punitive damages only when an officer’s conduct is malicious, intentional, or callously indifferent to the plaintiff’s rights.8
In addition to monetary awards from compensatory or punitive damages, a plaintiff may also request injunctive relief. Under certain circumstances, a court can issue an injunction that prohibits an officer or agency from engaging in certain actions (such as an order to not use a particular weapon or technique) or, less frequently, an injunction that requires an officer or agency to engage in certain actions (such as an order for officers to go through particular training or adopt a particular use-of-force policy).
In short, 42 U.S.C. § 1983 and Bivens permit a private plaintiff—or, in rare cases, a class of plaintiffs—to bring a civil suit against local, state, or federal officers alleging violations of their constitutional rights, including the Fourth Amendment right to be free from unreasonable seizures.
“Pattern and Practice” Litigation under 42 U.S.C. § 14141
The Attorney General of the United States is authorized by federal law to sue police agencies that engage in a pattern or practice of constitutional violations. The statute, 42 U.S.C. § 14141, reads as follows:
1 (a) Unlawful conduct. It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.
2 (b) Civil action by Attorney General. Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (1) has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.
Procedurally, the Department of Justice first conducts an investigation by reviewing police records, interviewing officers and civilian witnesses, and compiling data. Ultimately, the investigators can issue a report concluding that officers at the police agency being investigated have or have not engaged in a “pattern or practice” of constitutional violations. Frustratingly, there is no precise definition of “pattern or practice”; at best, it is clear that some degree of frequency is required—isolated acts are insufficient—although that degree may not be sharply defined. If the Department of Justice concludes that there was a pattern or practice of unconstitutional violations, it can file a federal lawsuit against the police agency.
Although it is theoretically possible for a police agency to litigate the issue, none actually do so. In practice, the police agency and the Department of Justice engage in bargaining that results in a negotiated settlement in which the agency promises to take certain, specified actions to end constitutional violations and to improve the delivery of police services. The settlement agreement can be submitted to the court for approval, and, if the court approves, the agreement is formalized as a consent decree. The court selects a monitor—typically a law firm or consulting group—to supervise and publish regular reports about the police agency’s ongoing efforts to fulfill the requirements of the consent decree. If the monitor finds the agency is falling short or refusing to attempt to make progress toward satisfying the decree, the original litigation can be reinstituted or new litigation can be filed.
Fourth Amendment violations related to the use of excessive force are not the only predicate for a § 14141 lawsuit or consent decree, but they are a common factor. As law professor Stephen Rushin, who has studied § 14141 investigations and litigation extensively, has pointed out,
Almost every single negotiated settlement signed by the DOJ pursuant to § 14141 addresses the policing agency’s use of force. Some of these use-of-force stipulations regulated many different possible issues
