Accelerated Civil Rights Settlements In the Shadow of Section 1983

Abstract

The families of Eric Garner, Laquan McDonald, Freddie Gray and Walter Scott have obtained multi-million dollar settlements from the cities in which their family members lost their lives. This paper identifies this new phenomenon as accelerated civil rights settlement, and defines it as a resolution strategy that uses the threat of 42 U.S.C. § 1983 litigation rather than litigation itself. The paper explains how accelerated civil rights settlement involves no complaint. Its goal is to focus on one incident, as opposed to a pattern or practice. It effects no widespread social change. But the strategy’s aim is pure: it seeks only compensation. To that end, it is successful, and has allowed some victims’ families to avoid the toll prolonged litigation exacts. Accelerated civil rights settlement stands in sharp contrast to the protracted and painful Section 1983 litigation undertaken by Michael Brown’s parents. Trial in that case is set for 2018, three years after it was filed. Discovery has been brutal, requiring Brown’s parents to produce their son’s medical records from age 10 onward. It is an innovative litigation alternative that shields victims’ families from the pain of federal discovery and trial. Accelerated civil rights settlement relies on Section 1983, but in a way previous civil rights plaintiffs have never used it. But, it concludes that this new kind of Section 1983 reliance is no less meaningful than previous applications. The paper recounts Section 1983’s history as a malleable tool. It ties Section 1983’s current role to its past incarnations, including its Reconstruction Era origin as a federal law aimed squarely at the Klan. It considers the law’s purpose in 1960s Chicago, when it was employed to challenge racist police practices. It looks to how it was relied upon in impact litigation concerning the 1999 shooting of Amadou Diallo. Choosing accelerated civil rights settlement can help victims’ families avoid litigation’s worst moments. In the wake of so many failed prosecutions of the officers involved in police shootings and custodial deaths, it may also be the only way in which the law helps honor lost lives.