The Obama Justice Department, first under Eric Holder and now under Loretta Lynch, is taking § 14141* out for a spin, opening broad investigations into an increasing number of local police departments. The most recent (and unsurprising) investigation is about to be opened
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Dispositive of nothing, I’ve always heard it said “one-four-one-four-one.”
Posted by: Ashley | Dec 14, 2015 1:52:06 PM
Really interesting issues. A few quick responses to some of these points.
First, I’ve always pronounced it “one-four-one-four-one.”
Second, I’d just note that it’s really hard, given current doctrine, for private litigants to bring the kinds of cases that DOJ can under 14141. Lyons makes private injunctive cases against police departments difficult, post-Wal-Mart class action jurisprudence is a problem, and given the lack of a contingency attorneys’ fee bonus given Dague and Kenny A., it’s just not that economical for many private lawyers to bring these cases. (Some, but not all, of the fee problem is mitigated by the prospect that the plaintiffs’ lawyers can get relatively certain attorneys’ fees for a period of time to monitor a judgment if one is obtained.) So 14141 plays an essential role in ensuring that rights against police abuse are real, even if we think criticisms of private litigation are unfair. And I’ll just say, having worked at the Civil Rights Division and also represented plaintiffs as a private lawyer in similar cases, public-agency defendants are just far more likely to listen to and take seriously DOJ’s litigation threats than private litigants’.
Third, in response to Stephen Rushin’s comment, of course every smart enforcement agency prioritizes, among other things, cases where the agency’s intervention can make the most marginal difference. But Alamance and Maricopa should show that the Holder DOJ didn’t exactly shy from big fights in this area. There are, of course, unique intra-DOJ institutional politics when you’re talking about suing New York City, so I wouldn’t think of what happens in NYC as saying much of anything about what DOJ’s general approach is.
Posted by: Sam Bagenstos | May 9, 2015 12:12:28 AM
Adam: Thanks for what probably could have been its own stand-alone guest-post.
Two thoughts. First, we get the “repeat player” benefit from the dedicated civil rights bar, those lawyers and organizations who live off § 1988 fees and who develop expertise in the vagaries of § 1983 litigation. Second, to the extent we are worried about profit motive, does it matter that, at least in the current context, we are talking about injunctive litigation.
Posted by: Howard Wasserman | May 8, 2015 3:39:17 PM
Damn autocorrect. That was supposed to be “Margaret Lemos.” Sorry, Maggie.
Posted by: Adam Zimmerman | May 8, 2015 2:03:16 PM
Great post. I think about these issues from time to time, but never in this particular context. A few quick points.
First, just to follow up on Brian’s comment, here’s some literature that addresses these issues (including Brian’s article): Margaret Lemons, Privatizing Public Litigation, Geo. L. J. (forthcoming 2016); David F. Engstrom, 123 Yale L.J. 616 (2013); Matthew C. Stephenson, Public Regulation of Private Enforcement: The Case for Expanding the Role of Administrative Agencies, 91 Va. L. Rev. 93, 95 (2005); Richard J. Pierce, Jr., Agency Authority to Define the Scope of Private Rights of Action, 48 Admin. L. Rev. 1 (1996); Brian D. Galle, Can Federal Agencies Authorize Private Suits Under Section 1983?: A Theoretical Approach, 69 BROOK. L. REV. 163, 165 (2003); Joseph A. Grundfest, Disimplying Private Rights of Action Under the Federal Securities Laws: The Commission’s Authority, 107 Harv. L. Rev. 961 (1994) .
Second, I agree that private litigation gets a bad rap. Beyond the growing bias against private plaintiffs’ attorneys, I think the traditional critiques of private versus public litigation — to borrow from David Engstrom — usually boil down to one of three arguments (which are more broadly associated with critiques of privatization in general): (1) zealousness, (2) coordination, and (3) legislative fidelity. By “zealousness,” some commentators mean that public enforcers are better able to use prosecutorial discretion to only enforce the law where the social benefits exceed the social costs. By contrast, private enforcers will litigate whenever their expected return exceeds the costs of litigation, regardless of the social benefits of the lawsuit. See Steven Shavell, The Fundamental Divergence Between the Private and the Social Motive to Use the Legal System, 26 J. Legal Stud. 575 (1997). (For some, this explains nuisance lawsuits and other kinds of “strike suits”). I think these arguments can ignore (or at least understate) the tremendous resource-constrains of public enforcement officials and agencies, and the need for a failsafe against political corruption. I think these arguments also sometimes ignore the fact that many actions seek to provide both a public remedy (structural reform), but a private one (redressing a privately felt wrong) where there may be other reasons for zealousness.
By “coordination,” some believe that public enforcers can provide a more centralized and coherent regulatory strategy in the way they choose to enforce law, as well as the way they work with regulated entities, than piecemeal private litigation efforts. Public enforcers are also “repeat players” who can play the long game for a particular interpretation of law, rather than private litigators. Then again, I think these arguments also can understate the flexibility private litigation offers public enforcers. Government lawyers can better choose to use their limited resources in the areas where they are most needed–which perhaps better effectuates a regulatory vision. Moreover, I think these arguments understate the coordination that often can occur between private interest groups, who also can network and play “for the rules” in the long run.
By “legislative fidelity,” some worry that private enforcers that sue in the public interest are not as publicly accountable as government officials (who are sometimes elected, and other times, appointed by politically accountable actors). (Paul Verkuil makes a point like this in his book, Outsourcing Sovereignty. But you could extend this argument to other recent efforts by private parties to push litigation or appeals when public officials refused to do the same). I think the fear is that private attorneys–who are sometimes motivated by profit–may push the bounds of the law in a way that public actors entrusted with law enforcement would not, leading to, as David Engstrom once suggested a kind of “mission creep.” These concerns may overlook the fact that Congress, in many cases, by design will create regimes that should be enforced by a mix of private and public attorneys. And, in areas like civil rights, environmental law, and workplace safety, where we might desire more deliberation and debate among public and private parties, that kind of mission creep may have been just what our public institutions intended when creating the law to begin with.
Posted by: Adam Zimmerman | May 8, 2015 1:59:58 PM
Howard, important questions. Richard Pierce has a nice piece on the differences that agency involvement in private litigation makes, and there have been some contributions here and there since (some, such as the 2003 article by y.t., in the 1983 context specifically).
Posted by: BDG | May 8, 2015 12:20:22 PM
Quick note–§ 14141 was actually enacted in 1994 as part of the Violent Crime Control and Law Enforcement Act (not 1996). In any event, I think this is a really important question. Why is it that police reform via private litigation in places like Oakland has been so slow and painful, while § 14141 reform has seemingly received somewhat less pushback?
I suspect that this apparent difference may be the result of case selection and small sample size. § 14141 is only about 20 years old. And the DOJ only seems to have the resources to pursue a very small number of cases each year. Thus far, virtually all § 14141 actions that the DOJ has fully pursued have resulted in settlements (the recent Alamance County, NC case being a notable and ongoing exception). And the DOJ has also not pushed forward § 14141 actions in some contentious, but arguably worthwhile cases (see New York City). So I wonder to what extent the DOJ may be prioritizing § 14141 action in locations where they think it will be most successful–and in particular where they think they can get a settlement. Were the DOJ to pursue § 14141 action in all apparent cases of systemic police misconduct, I’d imagine we’d see more resistance.
It will be very interesting to see if the DOJ is successful in the on-going Alamance County, NC case–a Sheriff’s department that strongly opposes DOJ intervention.
Posted by: Stephen Rushin | May 8, 2015 11:09:03 AM