Compensatory damages are a monetary payment “intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant’s wrongful conduct.”7 Compensatory damages are awarded to cover the costs of physical injuries and psychological injuries as well as tangible harms (such as damaged property) and intangible, but quantifiable harms (such as lost earnings).
Punitive damages are intended to punish a defendant’s misconduct and deter the defendant, and others in the defendant’s position, from engaging in such actions in the future. Not every case in which compensatory damages are awarded will also result in punitive damages; the Supreme Court has strongly suggested that courts can award punitive damages only when an officer’s conduct is malicious, intentional, or callously indifferent to the plaintiff’s rights.8
In addition to monetary awards from compensatory or punitive damages, a plaintiff may also request injunctive relief. Under certain circumstances, a court can issue an injunction that prohibits an officer or agency from engaging in certain actions (such as an order to not use a particular weapon or technique) or, less frequently, an injunction that requires an officer or agency to engage in certain actions (such as an order for officers to go through particular training or adopt a particular use-of-force policy).
In short, 42 U.S.C. § 1983 and Bivens permit a private plaintiff—or, in rare cases, a class of plaintiffs—to bring a civil suit against local, state, or federal officers alleging violations of their constitutional rights, including the Fourth Amendment right to be free from unreasonable seizures.
“Pattern and Practice” Litigation under 42 U.S.C. § 14141
The Attorney General of the United States is authorized by federal law to sue police agencies that engage in a pattern or practice of constitutional violations. The statute, 42 U.S.C. § 14141, reads as follows:
1 (a) Unlawful conduct. It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.
2 (b) Civil action by Attorney General. Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (1) has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.
Procedurally, the Department of Justice first conducts an investigation by reviewing police records, interviewing officers and civilian witnesses, and compiling data. Ultimately, the investigators can issue a report concluding that officers at the police agency being investigated have or have not engaged in a “pattern or practice” of constitutional violations. Frustratingly, there is no precise definition of “pattern or practice”; at best, it is clear that some degree of frequency is required—isolated acts are insufficient—although that degree may not be sharply defined. If the Department of Justice concludes that there was a pattern or practice of unconstitutional violations, it can file a federal lawsuit against the police agency.
Although it is theoretically possible for a police agency to litigate the issue, none actually do so. In practice, the police agency and the Department of Justice engage in bargaining that results in a negotiated settlement in which the agency promises to take certain, specified actions to end constitutional violations and to improve the delivery of police services. The settlement agreement can be submitted to the court for approval, and, if the court approves, the agreement is formalized as a consent decree. The court selects a monitor—typically a law firm or consulting group—to supervise and publish regular reports about the police agency’s ongoing efforts to fulfill the requirements of the consent decree. If the monitor finds the agency is falling short or refusing to attempt to make progress toward satisfying the decree, the original litigation can be reinstituted or new litigation can be filed.
Fourth Amendment violations related to the use of excessive force are not the only predicate for a § 14141 lawsuit or consent decree, but they are a common factor. As law professor Stephen Rushin, who has studied § 14141 investigations and litigation extensively, has pointed out,
Almost every single negotiated settlement signed by the DOJ pursuant to § 14141 addresses the policing agency’s use of force. Some of these use-of-force stipulations regulated many different possible issues related to force. Others more narrowly targeted a particular type of force at issue in the case. In total, virtually all of the negotiated settlements that involved monitors included a section regulating the use of force.9
Criminal Prosecutions under 18 U.S.C. §§ 241, 242, and 245
Individual police officers can be prosecuted for violating the Fourth Amendment, although not every constitutional violation is inherently criminal. Although federal civil claims may be brought in federal or state court, a statute, 18 U.S.C. § 3231, establishes that federal courts are the exclusive forum for federal criminal prosecutions. Section 3231 states that federal courts “have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States [that is, federal laws].” One of those laws of the United States, 18 U.S.C. § 42, is a criminal analogue to § 1983. It states:
Whoever, under color of any law, statute, ordinance, regulation, or custom, wilfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States . . . shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
Both 18 U.S.C. § 242 and 42 U.S.C. § 1983, discussed above, have given rise to a substantial body of law and academic literature that we will not address in depth here. For our purposes, it is sufficient to know that the statute applies when (1) officers acting “under color of . . . law” (2) willfully (3) commit a constitutional violation.
With regard to the first prong, the Supreme Court has concluded that officers act under color of law when “clothed with the authority” of the state, even if the officer’s actions are specifically prohibited by state law.10 Thus, an officer who blatantly misuses the power they possess by virtue of their position can be liable under this statute because their actions were made possible by virtue of their state-granted authority.
The second prong—“wilfully”—relates to the officer’s mental state, what criminal law calls mens rea (literally, “guilty mind”). Unfortunately, as legal scholar David Sklansky writes,
[e]xactly what that means has never been clear. It doesn’t mean that the officer had to be thinking about the Constitution, but it is