Reinventing Structural Reform Litigation: Deputizing Private Citizens in the Enforcement of Civil Rights

Abstract

The aim of this Article is to explore the possibility of constructing a litigative model that harnesses the power of private citizens to reform unconstitutional practices, particularly in the critical area of police-related rights violations. I seek here to reintegrate private citizens into the enforcement of public laws, to tap the private experiential and financial resources that were a necessary condition of the great structural reform efforts of the Civil Rights Movement of the 1950's and 60's.

The vehicle by which I propose to accomplish these ends is an amendment to 42 U.S.C. 14141, the statute which authorizes the Justice Department to seek broad injunctive remedies against municipal police departments engaged in unconstitutional "patterns and practices." While Supreme Court standing jurisprudence would preclude private litigants from engaging in the sort of reformist enterprise envisioned in 14141, I advance a theory of deputation which would give citizens a powerful voice in the social discourse on police-related policies. Drawing upon the notion of "public-private" partnerships, I argue here for the creation of an agency relationship between the executive charged with enforcing prohibitions against unconstitutional police practices, and the individuals and community groups that are directly affected by, and have the information, means and incentives required to challenge, those practices.