CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, April 13, 2021

Smith on Police Reform Through Section 1983

Adam J. Smith has posted Police Reform Through Section 1983 (Northern Illinois University Law Review, 2021, Forthcoming) on SSRN. Here is the abstract:

For decades, members of the Chicago Police Department (CPD) engaged in a protracted campaign of corruption, terror, and violence against Black and brown Chicagoans. Intermittent efforts to reform or otherwise rein in the CPD invariably fell short. In late 2014, a CPD officer murdered a 17-year-old Chicagoan, Laquan McDonald. CPD officials and city leaders attempted to whitewash the killing as a justified use of deadly force, but—thanks to the work of local organizers and a national pressure campaign—McDonald’s death instead led to a yearlong investigation by the federal Department of Justice (DOJ). Ordinarily, such an investigation would have resulted in a federal lawsuit to enjoin unconstitutional police practices; after the election of the stridently pro-police candidate Donald Trump to the Presidency, the prospect of federally monitored reform in Chicago seemed extinguished. But Illinois’ attorney general was undaunted—and instead launched a groundbreaking litigation that would bring CPD under federal supervision for years to come.

The largest reformist and abolitionist movement—indeed, the largest protest movement—in American history erupted this past summer in response to police violence against and unwarranted killings of Black and brown people. Given the moral urgency of the participants’ demands and the necessity of protecting Black lives from state violence, this Article argues that the states must respond by following Illinois’ lead. It contends that 42 U.S.C. § 1983, the statute at the heart of the state’s suit, provides a tenable basis upon which states may sue to obtain police reform with federal-court oversight. It posits as well that the states may overcome the limitations on Section 1983 relief imposed by Lyons, the daunting standing requirements instituted by Lujan, and the specter of federal field preemption through the doctrine of parens patriae, which holds that sovereign entities are entitled to special deference in obtaining federal standing on their citizens’ collective behalf. The Article concludes by calling the states to this greater project—that is, repurposing Section 1983 as a mechanism for obtaining for marginalized communities legal redress that would be otherwise unavailable—and by framing police reform as a necessary step on a path toward police abolition.

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