Civil Rights Ecosystems

Joanna C. Schwartz*

The Philadelphia and Houston Police Departments are similarly sized, but over a recent two-year period, ten times more civil rights suits were filed against Philadelphia and its officers than were filed against Houston and its officers. Plaintiffs in cases brought against Philadelphia and its officers were awarded one hundred times more in settlements and judgments. What accounts for these differences? Although the frequency and severity of misconduct and injury may play some role, I contend that the volume and outcome of civil rights litigation against any given jurisdiction should be understood as a product of what I call its civil rights ecosystem.

Scientists define ecosystems as communities of living and nonliving elements that are interconnected and interactive. I define civil rights ecosystems as collections of actors (including plaintiffs’ attorneys, state and federal judges, state and federal juries, and defense counsel), legal rules and remedies (including state tort law, § 1983 doctrine and defenses, and damages caps), and informal practices (including litigation, settlement, and indemnification decisions) that are similarly interconnected and interactive. Variation in different aspects of a civil rights ecosystem determines the frequency with which claims against government are brought, the frequency with which those claims are successful, and the magnitude of their success.

In this Article, I describe some key elements of civil rights ecosystems and the ways in which these elements interact, wide variation in civil rights ecosystems across the country, and ecosystem feedback loops that can magnify regional variation. Throughout, I illustrate aspects of this framework with examples drawn from an original dataset of almost 1,200 police misconduct cases filed in five federal districts around the country and surveys and interviews of dozens of attorneys who represented plaintiffs in these cases.

Finally, I consider the implications of these observations. Understanding civil rights filings and payouts as the product of civil rights ecosystems reveals significant conceptual gaps in § 1983 doctrine and scholarly debate about the relationship between constitutional rights and remedies; raises important questions about the mechanics and desirability of regional variation in constitutional protections; and offers insights valuable for courts, advocates, and government officials seeking to change the scope and success of suits to enforce civil rights.

*Professor of Law, UCLA School of Law. For helpful conversations and comments, thanks to Michelle Wilde Anderson, Beth Colgan, Joe Cudby, Blake Emerson, Barry Friedman, Rachel Harmon, Aziz Huq, Paul Messing, John Rappaport, Richard Re, Dan Schwartz, Shirin Sinnar, David Sklansky, Eugene Volokh, Stephen Yeazell, Diego Zambrano, and participants in workshops at Stanford Law School, UCLA School of Law, the University of Utah S.J. Quinney College of Law, the Southern California Criminal Justice Roundtable, and the Law of the Police Conference at the University of South Carolina. Thanks also to Blake Berich and Hannah Pollack for excellent research assistance, and thanks to Adam Abdel-Mageed, Alex Bau, Bryce Freeman, Donya Khadem, Sarah McDonald, Gillian McGann, Sophie Montgomery, and the editors of the Michigan Law Review for excellent editorial assistance.

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