Accelerated Civil Rights Settlements In the Shadow of Section 1983

33 Pages Posted: 28 Feb 2017 Last revised: 24 Sep 2018

Date Written: February 27, 2017

Abstract

The families of Eric Garner, Laquan McDonald, Freddie Gray and Walter Scott have obtained multi-million dollar settlements from the cities in which their family members lost their lives. This paper identifies and labels these settlements as a new phenomenon: accelerated civil rights settlement. It defines accelerated civil rights settlement as a resolution strategy that uses the threat of 42 U.S.C. § 1983 litigation rather than litigation itself. The paper explains how accelerated civil rights settlement involves no complaint or case—nothing is filed. Also, the goal of accelerated civil rights settlement is to obtain settlement by focusing on one incident, as opposed to a city’s practices or customs. It may not effect widespread social change. But the strategy’s aim is pure: it seeks only compensation. To that end, it is successful, and has allowed some victims’ families to avoid the toll prolonged litigation exacts. Accelerated civil rights settlement stands in sharp contrast to the protracted and painful Section 1983 litigation undertaken by Michael Brown’s parents. Trial in that case is set for 2018, three years after the case was filed. Discovery has been brutal, requiring Brown’s parents to produce their son’s medical records from age 10 onward. Accelerated civil rights settlement is an innovative alternative that shields victims’ families from the ordeal of federal litigation.

Accelerated civil rights settlement relies on Section 1983, but in a new way that differs from its previous uses. Still, this paper concludes that just as accelerated civil rights settlement represents brilliant strategy, its reliance on Section 1983 is no less meaningful than previous applications. The paper recounts Section 1983’s history as a malleable statutory tool. It ties Section 1983’s current role to its past incarnations, including its Reconstruction Era origin as a federal law aimed squarely at the Klan. It considers the law’s purpose in 1960’s Chicago, when it was employed to challenge racist police practices. It looks to how it was relied upon in impact litigation concerning the 1999 shooting of Amadou Diallo.

Choosing accelerated civil rights settlement can help victims’ families avoid litigation’s worst moments. In the wake of so many failed prosecutions of the officers involved in police shootings and custodial deaths, it may also be the only way in which the law helps honor lost lives.

Keywords: civil rights, civil procedure, section 1983, critical race theory, racial discrimination, fourth amendment

JEL Classification: K41

Suggested Citation

Macfarlane, Katherine, Accelerated Civil Rights Settlements In the Shadow of Section 1983 (February 27, 2017). Utah Law Review, 2018. Available at SSRN: https://ssrn.com/abstract=2924931 or http://dx.doi.org/10.2139/ssrn.2924931

Katherine Macfarlane (Contact Author)

University of Idaho College of Law ( email )

P.O. Box 442321
Moscow, ID 83844-2321
United States

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