Friday, July 10, 2020
Professor Sunita Patel of UCLA School of Law recently published Jumping Hurdles to Sue the Police, 104 MINNESOTA LAW REVIEW 2257 (2020).
The view that the Supreme Court has limited judicial review of unconstitutional government practices is evident in varied quarters of legal scholarship. With respect to structural reform litigation against the police there are good reasons for pessimism, particularly when considering three particular lines of Supreme Court case law. City of Los Angeles v. Lyons, Monell v. Social Security Administration, and, to a lesser degree, Wal-Mart v. Dukes, have typically made it difficult to challenge constitutionally suspect police practices. Lyons erected a standing hurdle for plaintiffs seeking injunctive relief from police department policies; the Monell line of cases erected a hurdle to achieving municipal liability; and most recently, Wal-Mart erected a class action certification hurdle. These doctrinal barriers require plaintiffs to provide substantial evidence and involve substantive consideration of constitutional claims prior to trial.
Through a close examination of three racial-profiling class actions, Floyd v. City of New York, Ortega-Melendres v. Arpaio, and Bailey v. City of Philadelphia, this Article explores the in-formation litigators used to overcome these doctrinal obstacles in order to reach a substantive review of police practices. The case studies show that certain kinds of evidence can assist plaintiffs in overcoming the standing, municipal liability, and class certification barriers: hard data and statistical evidence, discriminatory statements by supervisors and central decision-makers, and/or proof of a history of notice and failure to remedy constitutional violation. Layering the evidence presented in the three case studies over the doctrinal requirements reveals a type of convergence—the same or similar evidence can be used to overcome interlocking aspects of the doctrinal barriers. The Article also discusses other means to obtain information outside the traditional discovery process, such as relationships with advocates and community organizations; publicity that creates leads and opportunities for further fact gathering; and court orders requiring data tracking and disclosures following prior litigation.