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Publication Date

2018

Abstract

The current constitutional torts system under 42
U.S.C. § 1983 affords little relief to victims of
government wrongdoing. Victims of police brutality
seeking accountability and compensation from local
police departments find their remedies severely limited
because the municipal liability doctrine demands
plaintiffs meet near-impossible standards of proof
relating to policies and causation.
This Article provides a revisionist historical account
of the origin of the Supreme Court's municipal liability
doctrine. Most private claims for damages against
cities or police departments do not implicate the
doctrine's early federalism concerns over protracted
federal judicial interference with local governance.
Meanwhile, the federal government imposes extensive
reforms on local police departments through the Violent
Crime Control and Law Enforcement Act, 42 U.S.C.

§ 14141. The resulting system of bifurcated municipal
liability for police misconduct ignores history. It
permits government-initiated,systemic injunctive relief
claims to flow readily, but effectively bans individual
victims' discrete damages claims.
This Article proposes making it easierfor individuals
to sue local governments for police brutality. Reducing
the standard for damages relief does not offend
federalism principles and realizes objectives critical to
the constitutional remedial system: compensation,
trust, vindication of rights, and appropriate
assignment of responsibility. This Article proposes a
remedial scheme authorizing civil actions for police
brutality victims against local governments for (1) a
pattern or practice of local government police
misconduct, and (2) isolated instances where a local
police department lacks a policy and there is national
consensus among other local departments that the
policy is necessary to prevent a particular
constitutional harm. The proposal also expands
potential individual officer liability to instances in
which an officer ignores a specific policy of a local
police department aimed at preventing wrongdoing

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