We are in the midst of an existential crisis of constitutionality and accountability. Masked federal agents are taking people off the streets and taking them to prisons in strange states and countries. The Trump administration has evaded, slowed, and violated court orders. The Supreme Court is overturning decades of well-established precedent with summary orders without explanation, scolding lower courts for not being adept enough at reading the contents of shadow documents.
Against this backdrop, states across the country are considering whether and how to step into the vacuum created by Congress and the Supreme Court. This includes whether to create the right to sue federal officials or sue them without the protection of qualified immunity. However, well-known concerns that suing the government is dangerous to local government budgets, staff retention, and public safety threaten to hamper such efforts.
Indeed, while the right to sue the government has long been touted in lofty and popular terms as an important means of ensuring justice and deterring future misconduct, court opinions and public opinion endlessly point to reasons why public officials may sue when they violate the Constitution. do not have to sue the government.
As the Supreme Court has repeatedly explained, the burden and distraction of government officials defending themselves in court, and the threat of financial ruin if found guilty, can chill decisive action by well-intentioned officials, discourage people from working for the government, and extort money from cash-strapped jurisdictions.
For those familiar with the intricacies of civil rights principles, suing the government can be daunting. There are numerous hurdles to overcome, including proving constitutional violations, overcoming qualified immunity, and establishing local government liability, making it extremely difficult to win in court.
For others, suing the government seems futile. As advocates of prison and police abolition argue, litigation is a limited tool. Litigation can feel unambitious or even counterproductive because it is successful only when it seeks modest change, often leading to “transformative reforms” that accumulate rather than limit the power of unjust institutions and take energy away from efforts to promote more progressive change.
In a future article, Stanford Civil Rights Journal and Civil LibertiesI argue that constitutional tort litigation remains a vitally important tool for those harmed by government and for those seeking long-lasting change. Despite steep doctrinal hurdles, it is possible to win a civil rights case. Litigation provides important relief to plaintiffs. It’s compensation, information, a day in court, and recognition and remembrance of wrongdoing. Court orders or settlements can force law enforcement officials to change their practices. Litigation can provoke behavioral changes in governments by announcing new standards of care, create financial pressure for improvements, unearth valuable information, and draw attention to issues related to the case at hand. Although incremental, civil rights litigation can advance ambitious movements, especially when they are part of broader advocacy campaigns, legislative efforts, and movement building over time.
These notions that civil rights cases can be won, and that victories can have tangible benefits, may seem basic. Even those who are skeptical of litigation will recognize these benefits (even if they consider its limitations). But for several reasons, it is critical that we shine a spotlight on all that litigating governments can accomplish, rather than just making random admissions.
First, it’s important to highlight these benefits as a counter to the conventional wisdom about the dangers of suing the government. The Supreme Court stated that the principle for interpreting Section 1983 (a federal law that allows individuals to sue state or local public officials for violating their federal rights) is to balance “the importance of damages to protect the rights of citizens” with “the need to protect public officials and the related public interest in their need to exercise discretion in encouraging the vigorous exercise of public power.” But nearly all of the court’s attention has focused on the need to protect officers from lawsuits. We need to speak out about the importance of reparations to protect people’s rights, pushing back against myths about the dangers of suing the government that have been used to justify qualified immunity and other limitations on the right to sue. Without an understanding of what such litigation can accomplish, those concerns may prevail.
Articulating the benefits provided by civil rights litigation also helps to contextualize evidence that the current civil rights redress system is not working as expected. As just one example, the fact that police officers and police officers contribute so little to settlements and judgments awarded against them makes it clear that they are not deterring litigation in the way that commentators and courts have long hoped. A district judge recently struck down a motion for attorney’s fees based on this evidence, arguing that broad coverage means there is limited deterrence from litigation. This decision was reversed on appeal. But there is no evidence on how civil rights litigation do It is very easy to conclude that extensive compensation has little value or purpose in these cases, even though they influence behavior and otherwise contribute to society.
Emphasizing the value of civil rights litigation is also key to ensuring that lawyers continue to bring civil rights cases. Constitutional tort litigation is complex, time-consuming, and risky. Understanding and appreciating the value of such litigation does not make it more difficult to file a lawsuit. But perhaps we can convince more lawyers that the challenge of practicing in this area is worth the effort. And if more skilled lawyers were dedicated to bringing these cases, the civil rights ecosystem could flourish with better advice and consultation among lawyers, better support for less experienced lawyers, better advocacy, and better outcomes.
Finally, articulating the merits of the 1983 case can support reform efforts, such as advancing state laws that hold federal, state, and local officials accountable. The need for state remedies for rights violations has perhaps never been clearer, as federal civil rights principles are unlikely to become plaintiff-friendly any time soon.
Understanding the potential for civil rights litigation is always important, but especially important now. While litigation itself is insufficient to right the ship of our democracy, its limitations do not justify fatalism about the entire enterprise. Clarifying what can be achieved by suing the government and leveraging its strengths is both immediate and constant.
Joanna C. Schwartz is the Harry Pregerson Professor Emeritus of Law at UCLA School of Law. Her article “The Tenacious Power of Constitutional Torts” is forthcoming. Stanford Civil Rights Journal and Civil Liberties.
Recommended Citation: Joanna C. Schwartz, The Relentless Force of Constitutional TortSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (March 27, 2026), https://statecourtreport.org/our-work/analysis-opinion/tenacious-power-constitutional-torts
