The Tenacious Power of Constitutional Torts

We are in the midst of an existential crisis of constitutionality and accountability. Masked federal officers are whisking people off the streets and to prisons in states and countries they’ve never known. The Trump administration has sidestepped, slow-walked, and violated court orders. The Supreme Court is reversing decades-old, well-established precedent in summary orders without explanation, then chiding lower courts that are not sufficiently adept at reading the shadow docket's tea leaves.

Against this backdrop, states around the country are exploring whether and how to step into the void created by Congress and the Supreme Court — including whether to create rights to sue federal officers and rights to sue government officials without their having the protections of qualified immunity. Yet familiar concerns that suing the government is dangerous to local governments’ budgets, officer retention, and public order threaten to stymy these efforts.

Indeed, while the right to sue the government has long been touted in lofty and general terms as an important tool to secure justice and deter future misconduct, court opinions and public commentary about the prospect of suing government officials when they violate the Constitution offer no end of reasons not to sue the government.

As the Supreme Court has repeatedly explained, the burdens and distractions to government officials of defending themselves in court, and the threat of financial ruin if they are found liable, threaten to chill decisive action by well-meaning officers, discourage people from working for the government, and take money away from cash-strapped jurisdictions.

To those well acquainted with the intricacies of civil rights doctrine, suing the government is daunting. A whole host of barriers — including the challenges of proving a constitutional violation, overcoming qualified immunity, and establishing municipal liability — mean that it is exceedingly difficult to win in court.

And, to others, suing the government seems futile. As those advocating prison and police abolition have argued, litigation is a limited tool. It can feel unambitious — or even counterproductive — because lawsuits are only successful when they seek modest changes and often result in “reformist reforms” that build up, instead of limiting, the power of unjust systems and sap energy from efforts to advance more transformative change.

In a forthcoming article in the Stanford Journal of Civil Rights & Civil Liberties, I argue that constitutional tort litigation remains a critically important tool for people who have been harmed by government and for those who seek long-lasting change. Despite tough doctrinal hurdles, civil rights lawsuits can be won. Lawsuits offer important relief for plaintiffs: compensation, information, a day in court, and acknowledgments and commemorations of wrongdoing. Court orders or settlements can mandate that law enforcement officials change their practices. Lawsuits can provoke government behavior change by announcing new standards of care, create financial pressure to improve, unearth valuable information, and focus attention on the issues implicated in the case at hand. Civil rights litigation, while incremental, can advance ambitious causes — particularly over time and when part of broader advocacy campaigns, legislative efforts, and movement-building.

These observations — that civil rights suits can be won and that those victories can confer tangible benefits — may seem basic. Even skeptics of litigation would likely acknowledge these benefits (even as they dwell on lawsuits’ limitations). But, for several reasons, it is critically important not just to acknowledge offhand but to spotlight all that suing government can accomplish.

First, focusing on these benefits is important to serve as a counterpoint to the prevailing myths about the dangers of suing government. The Supreme Court says its doctrine interpreting Section 1983 — the federal statute that allows individuals to sue state or local officials who violate their federal rights — balances “the importance of a damages remedy to protect the rights of citizens” against “the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.” But nearly all the Court’s attention is focused on the need to protect officers from suit. We need to give voice to “the importance of a damages remedy to protect the right of citizens” as a push back to the myths about the dangers of suing government that have been used to justify qualified immunity and other limitations on the right to sue. Without an appreciation of what such litigation can accomplish, those concerns might win the day.

Articulating the benefits conferred by civil rights litigation also helps to contextualize evidence that our current system of civil rights remediation does not work as it should. As just one example, the fact that police officers and departments almost never contribute to settlements and judgments entered against them makes clear that lawsuits do not deter in the ways long expected by commentators and courts. Recently, a district judge used this evidence as a basis to cut an attorneys’ fees application, reasoning that widespread indemnification means that lawsuits have limited deterrent value. This decision was reversed on appeal. But without evidence of the ways civil rights lawsuits do influence behavior and otherwise contribute to society, it is all too easy to conclude that widespread indemnification means these suits have little value or purpose.

Emphasizing the value of civil rights lawsuits is additionally key to ensuring that lawyers continue bringing civil rights cases. Constitutional tort litigation is complicated, time-consuming, and risky. Understanding and appreciating the value of these cases does not make them less challenging to bring. But it can, perhaps, convince more lawyers that the challenge of practicing in this area is worth the effort. And if more skilled lawyers dedicate themselves to bringing these cases, the civil rights ecosystem can flourish — with better advice and consultation among attorneys, better support for less experienced lawyers, better advocacy, and better results.

Finally, articulating the benefits of Section 1983 litigation can support reform efforts, including the push for state statutes to hold federal, state, and local officials accountable. As federal civil rights doctrine is not likely to get friendlier for plaintiffs any time soon, the need for state remedies for rights violations has perhaps never been clearer.

Understanding the potential of civil rights litigation has always been important, but it is of particular salience now. Although litigation is on its own inadequate to right the ship of our democracy, its limitations do not justify fatalism about the entire enterprise. Articulating what suing the government can accomplish and exploiting those strengths is a necessity as immediate as it is evergreen.

Joanna C. Schwartz is the Honorable Harry Pregerson Professor of Law at UCLA School of Law. Her article, “The Tenacious Power of Constitutional Torts,” is forthcoming in the Stanford Journal of Civil Rights & Civil Liberties.

Suggested Citation: Joanna C. Schwartz, The Tenacious Power of Constitutional Torts, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Mar. 27, 2026), https://statecourtreport.org/our-work/analysis-opinion/tenacious-power-constitutional-torts