Plaintiffs left 'standing in the dark' when seeking redress for police misconduct, researcher finds

LAWRENCE — When a plaintiff seeks a court order preventing future police misconduct, they must demonstrate they have legal “standing” to pursue such an order. A new study by a University of Kansas law professor argues that plaintiffs are often “standing in the dark” because obtaining the information needed to prove standing is often not kept by police departments or is unnecessarily difficult to obtain.

In 1983, the Supreme Court ruled in City of Los Angeles v. Lyons that someone seeking injunctive relief for police misconduct must prove not only that misconduct happened in the past, but that there is significant ongoing risk that it could happen to that same person again. The plaintiff in that case, Lyons, was placed in a chokehold by police that rendered him unconscious and severely injured his larynx. By the time his case got to the Supreme Court, 15 people had died because of the Los Angeles Police Department’s use of the chokehold. 

But the Supreme Court ruled Lyons did not have standing for an injunction barring the chokehold maneuver because Lyons could not prove that he himself was at risk of being placed in a chokehold again. That standard, and the difficulty it poses for plaintiffs seeking to challenge unlawful and harmful police practices, is what Sharon Brett, associate professor of law at KU, examines in a new scholarly article.

“The standard for obtaining an injunction under Lyons is often case-ending for plaintiffs. It is difficult to prove that you have an imminent risk of being subjected to the same misconduct again in the future, in large part because police do not keep adequate records of how often they engage in misconduct, and when such records exist, they are not readily available to plaintiffs,” Brett said. “This paper unpacks exactly why proving standing for injunctive relief is so difficult and offers some potential avenues for reform that would make it more possible for plaintiffs to have their day in court.”

In the article, available on SSRN, and forthcoming in the BYU Law Review,* Brett wrote how law enforcement agencies do not keep data on significant portions of their activities and how discovery protocols often allow defendants to shield relevant information from plaintiffs that would allow them to prove standing.

Brett’s article focuses on two discrete deficiencies ailing plaintiffs. First, agencies often do not keep data on behaviors a plaintiff may be responding to, such as chokeholds or stop-and-frisk tactics, creating what she called an “information gap” that prevents plaintiffs from understanding — and proving — just how widespread abusive behavior may be in a police department. 

She also wrote about “information asymmetry,” where data does exist but remains in the hands of defendants and is discoverable by plaintiffs only after they jump through several logistical, financial and bureaucratic hoops. 

In the article, Brett examined potential changes to litigation rules, statutes and funding streams that might shift the litigation process back to more even footing for plaintiffs. While she noted that it is unlikely the highly scrutinized Lyons precedent will be abrogated entirely, there are legal and legislative steps that could be taken.

“I was motivated in this project to think creatively about how to rectify Lyons’s shortcomings to allow plaintiffs to get relief,” Brett said.

First, Brett suggested police departments could be required to keep much more data on tactics used that can lead to civil rights violations such as police use of force or unreasonable search and seizure. While departments regularly are required to document uses of firearms, federal legislation requiring documentation of other uses of force such as chokeholds and non-lethal control maneuvers would be helpful, as would documentation of involvement of canine units during searches, documentation of vehicular detentions and more, according to Brett. 

Further, she wrote, simply requiring a larger amount of data is not sufficient — the quality of the data kept must be monitored by supervisors.

Because Lyons was a federal decision and the resulting standard for proving injunctive relief is as well, Brett also noted that reforms at the state can play a role in increasing access to state court adjudication of meritorious claims. State-based analogues to the landmark federal civil rights legislation, 42 U.S.C. 1983, which allows lawsuits against police for constitutional violations in federal courts, have been gaining ground in recent years. Brett pointed out how states such as New Mexico, California and Colorado have enacted statutes that allow plaintiffs to pursue claims for injunctive relief for police misconduct at the state level. 

While federal legislation could mitigate the effect of Lyons on a national level, state constitutions and state legislation could provide an effective alternative avenue for addressing civil rights violations, the author wrote.

Finally, expanding state and federal investigative powers to examine cases of misconduct could address the issue as well. While allowing already existing investigative bodies to further investigate such cases could be useful, Brett noted that such reforms are unlikely under the current federal administration, which is rolling back the role of the Department of Justice Civil Rights Division. 

Brett also wrote that in a different political climate, the most effective reform would be national legislation mandating data collection and oversight of policing activities and conditioning federal funding for law enforcement on development and implementation of reporting, data keeping and transparency policies.

While each of the approaches have their own strengths and challenges, it is unlikely they will all be enacted, especially in the near term. Regardless, Brett said the conversation is worth having, as the current standard for proving standing has left defendants in the dark.

“The purpose here is not to say each of these things can and must pass or must pass immediately. Rather, the paper aims to point out how and why Lyons creates too high of a bar, and the potential ways to address its shortcomings,” she added. “If we want to give life and effect to our civil rights statutes, then we should have these reforms in mind.”

*The article is available on SSRN and is forthcoming in the BYU Law Review. The article contains the language “draft, do not cite,” but those interested in citing the research can get permission from the author by contacting Mike Krings at mkrings@ku.edu.