The Heat is On: Does Civil Litigation Affect Policing Practices?

• Published date: 01 December 2024
• DOI: http://doi.org/10.1177/10659129241266824
• Author: Christine C. Bird,Brooke N. Shannon
• Date: 01 December 2024

Article

Political Research Quarterly

2024, Vol. 77(4) 1212–1229

© The Author(s) 2024

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DOI: 10.1177/10659129241266824

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The Heat is On: Does Civil Litigation Affect

Policing Practices?

Christine C. Bird

1

and Brooke N. Shannon

2



Abstract

We investigate the relationship between civil litigation and policing activity at a systemslevel and take a step toward a

more rigorous understanding of the effect of civil litigation as an accountability mechanism for law enforcement

misconduct. To investigate, we assemble original data on every civil lawsuit f‌iled against a police department in North

Carolina between 2003 and 2011, which we pair with existing traff‌ic stops data from 2002 to 2016. We hypothesize that

as an agency faces an accumulation of lawsuits, the agency will scale back its discretionary enforcement activities.

Empirical tests reveal a 16 percent drop in the number of monthly stops made by off‌icers in the aftermathof new civil

litigation against their department. However, reductions in discretionary police behavior appearto benef‌it white

motorists while rates of stops of Black motorists remain relatively unchanged. Our f‌indings highlight the role of litigation

in police accountability as well as the seeming intractability of racial disparities in discretionary police behavior.

Keywords

public policy, urban politics, policing, litigation, legalized accountability, bureaucratic responsiveness

Introduction

The civil litigation system in the United States has a long

history of relying on citizens to enforce civil rights laws

via private litigation, including complaints against law

enforcement agencies. The rise of liability lawyers,

government agencies and even private businesses reor-

iented much of their internal policy making to include

efforts to minimize the risk of a lawsuit which could be

costly, embarrassing, or otherwise disruptive to their

goals. Charles Epp opens Making Rights Real: Activists,

Bureaucrats, and the Creation of the Legalistic State with

a 1987 quote from a police department illustrative of our

purpose: “We are being sued because we are not doing our

job. The legal system and its social engineering are

combating our incompetence in f‌inding, selecting, hiring,

and controlling our police off‌icers”(2009, 1). He argues

the rise of liability lawyers and the activist networks that

support them pushed government agencies (including law

enforcement) to adopt policies and systems that reduced

the likelihood of lawsuits, termed “legalized account-

ability.”Most organizational leadership can recognize a

lawsuit, regardless of its merit or its likelihood of success,

can prove disruptive and embarrassing. However, many of

the rules governing legal procedure disadvantage indi-

viduals when presenting civil rights violations against law

enforcement off‌icers due to a variety of factors including

the costs associated with f‌iling cases, inadequate legal

representation, and legal impediments like qualif‌ied im-

munity (C. R. Epp 1998,2009; C.R. Epp, Haider-Markel,

and Maynard-Moony, 2014;Farhang 2009;Galanter

1974).

Despite these obstacles, legal entrepreneurs and indi-

vidual citizens continue to invest resources in legal mo-

bilization strategies. Even if lawsuits never make it to trial,

can the mere f‌iling of legal action have a downstream

effect on the nature of policing? Some scholars argue civil

rights lawsuits are a “hollow hope”that divert advocacy

resources from more likely avenues for reform like lob-

bying legislators while decentering community-wide

problems by reframing them into individual disputes

(Barnes and Burke 2015;Farhang 2009;Glendon 1987;

Haltom and McCann 2004;Rosenberg 1991). However, if

even one civil rights lawsuit is successful, the cost to the

1

Oklahoma State University, Stillwater, OK, USA

2

University of Memphis, TN, USA

Corresponding Author:

Christine C. Bird, Department of Political Science, Oklahoma State

University, 201 SSH, Stillwater, OK 74078-1010, USA.

Email: christine.bird@okstate.edu

jurisdiction could be massive. Estimates indicate US

municipalities pay out millions of dollars settling lawsuits

brought about by police misconduct (Thomson-DeVeaux,

Bronner, and Sharma 2021), which may be enough for

agencies to respond with discretion, or in less risk-

producing practices when engaging with the public.

The real risk lawsuits pose to law enforcement agencies,

however, is not the f‌inancial cost of a lawsuit but the blow

to their reputation with the community they serve and with

local politicians (C. R. Epp 2009). Departmental budgets

are determined by local off‌icials like city managers,

mayors, and city councils, police chiefs are appointed by

the same groups, and county sheriffs are typically elected,

which makes elements of policing subject to democratic

public opinion. Therefore, while individual litigants often

fail to secure a favorable decision in courtrooms for

themselves, the collective weight of lawsuits brought

against law enforcement organizations may still result in a

bureaucratic response.

If so, a response is most likely to manifest in areas

wherepoliceoff‌icers have greater discretion. Research

on discretionary police activities f‌inds their use is

highly sensitive, scaling up or down in response to

internal directives (C. R. Epp 2009;Epp, Haider-

Markel, and Maynard-Moony, 2014;Mummolo

2018), as well as outside pressures like protests

(Shjarback et al., 2017). Civil litigation may also

provoke a response as local off‌icials and agency

leadership seek to tread lighter and avoid costly mis-

takes. This could take place as a reduction of police

budgets or directives to individual off‌icers to avoid

unnecessary encounters (i.e., off‌icers make fewer traff‌ic

stops overall or fewer contacts with drivers when a clear

risk to public safety is not present). We argue lawsuits

should be considered along with voting and protest as

accountability mechanisms inf‌luencing local service

delivery because even a single civil rights lawsuit

carries risks for a law enforcement agency.

In this paper, we evaluate the relationship between civil

lawsuits, policing, and race. First, we construct a novel

dataset of civil suits f‌iled in North Carolina’s federal

district courts against law enforcement agencies from the

federal f‌iling system PACER

1

from 2003 to 2011. All

cases f‌iled in our dataset indicate a §1983 civil lawsuit was

f‌iled against a law enforcement agency and at times,

individual off‌icers. We combine our case-centered dataset

with existing records of traff‌ic stops from the North

Carolina Department of Justice (NCDOJ) and an original

dataset of police budgets for municipal and county law

enforcement agencies. This combination of novel and

existing datasets allows for comparison between levels of

police activity and funding at the agency level before and

after civil litigation actions are f‌iled against a given law

enforcement agency.

Regression analyses reveal that off‌icers from agencies

with a history of litigation have a greater sensitivity to new

legal action and respond by making fewer traff‌ic stops.

These f‌indings are statistically signif‌icant and robust

across model specif‌ications. Agencies that previously

faced up to three suits respond to a new lawsuit by re-

ducing monthly total traff‌ic stops by 16 percent compared

to agencies with no history of lawsuits. Breaking total

stops into compositional elements reveals a 15 percent

month-to-month decline in safety-related stops (speeding,

running stop signs, driving under the inf‌luence, and unsafe

driving) and a 18 percent decline in stops for more dis-

cretionary reasons, which we term investigative stops,

including vehicle equipment and regulatory violations,

seat belts, and other investigative purposes (C.R. Epp,

Haider-Markel, and Maynard-Moony, 2014;

Baumgartner, Epp, and Shoub, 2018). Finally, we look at

police budgets in the aftermath of lawsuits to examine

local accountability. We f‌ind no evidence that local pol-

iticians attempt to scale back police funding in response to

lawsuits.

Our f‌indings suggest accumulating legal action taken

against police departments may inf‌luence street-level

police behavior, an important contribution to the litera-

ture. However, when we look separately at stops cate-

gorized by the motorist’s race, we f‌ind the relationship

between lawsuits and traff‌ic stop reductions are only

statistically meaningful for white drivers. The racialized

nature of this set of f‌indings reinforces troubling f‌indings

documented in existing literature indicating discretionary

police activities are scaled back more dramatically for

white drivers than for Black drivers (C.R. Epp, Haider-

Markel, and Maynard-Moony, 2014; D.A. Epp and

Erhardt 2021;Shoub et al., 2021), highlighting the du-

rability of racial differences in traff‌ic stops. Lawsuits

appear to inf‌luence street-level police behavior but in

circumspect and blunt ways. In what follows, we provide

a review of existing scholarship evaluating accountability

mechanisms for law enforcement agencies, outline the

process of data collection, introduce descriptive f‌indings

of our lawsuits dataset, outline our methodology, and

present results.

Legalized Accountability and

Bureaucratic Responsiveness of

Law Enforcement

Broadly, we know that when courts intervene in conf‌licts

and issue judicial directives, courts can compel bureau-

cratic policy change. But even court directives often

cannot overcome individual bureaucrats’own policy

preferences. Even with legal directive, an agent’s indi-

vidual policy preferences or inherent biases might lead to

Bird and Shannon1213