UCLA School of Law

There is plenty of reason for frustration and disappointment in our system of constitutional remediation. The Supreme Court has created so many barriers to relief that people often do not get the remedy that they deserve—or get nothing at all—when their rights are violated. Even when people manage to win, laws, policies, and union agreements insulate local governments and their officers from the consequences of their actions. And the types of incremental victories litigation can provide do not approach the types of transformative changes we need.

Yet constitutional tort litigation remains a critically important tool for people who have been harmed by government and for those who seek long-lasting change. Despite significant doctrinal hurdles, civil rights cases can be won. Lawsuits offer compensation, a day in court, and commemorations of wrongdoing. Court orders or settlements can mandate that government officials change their practices. Lawsuits can announce new standards of care, create financial pressures to improve, unearth valuable information, and focus public attention on issues underlying a case. Civil rights victories, while incremental, can advance ambitious causes—particularly over time and when part of broader campaigns and movement-building.

Articulating and appreciating the benefits of constitutional tort litigation is needed, now more than ever, to counter myths about the dangers of suing officers and local governments that are used to justify qualified immunity and other limitations on the right to sue; to encourage lawyers to continue taking these cases, particularly given the federal government’s abdication of its responsibility to investigate constitutional violations by local governments; and to understand how best to harness litigation’s strengths in conjunction with other advocacy efforts to reduce government violence and overreach.