Volume 109

Silencing Litigation Through Bankruptcy

Bankruptcy is being used as a tool for silencing survivors and their families. When faced with claims from multiple plaintiffs related to the same wrongful conduct that can financially or operationally crush the defendant over the long term—a phenomenon we identify as onslaught litigation—defendants harness bankruptcy’s reorganization process to draw together those who allege harm and pressure them into a swift, universal settlement. In doing so, they use the bankruptcy system to deprive survivors of their voice and the public of the truth. This Article identifies this phenomenon and argues that it is time to rein in this destructive use of bankruptcy. Whereas the current literature largely discusses mass tort bankruptcy from a doctrinal, constitutional, or economic perspective, this Article examines how bankruptcy proceedings like these cause direct harms to survivors, to public trust in the justice system, and to the corporate economy. It traces the evolution of defendants’ use of bankruptcy to resolve mass torts from asbestos, IUD, and breast implant product liability litigation to its present-day use in controversies involving the Catholic Church, Purdue Pharma, the Weinstein Companies, USA Gymnastics, the Boy Scouts of America, Alex Jones’s Infowars, and Johnson & Johnson. The Article shows how the prior use of reorganization for mass torts created the necessary conditions to allow defendants to use bankruptcy to silence people and facilitate cover-ups in a wider variety of onslaught litigation. It concludes with a normative proposal for the narrow circumstances in which courts should allow bankruptcy to be used to deal with onslaught litigation, while still preserving the voices of those harmed.

Introduction

“I do not forgive you.”1 1.Jeremy Hill, ‘I Do Not Forgive You:’ Opioid Victims Address Sacklers Directly, Bloomberg (Mar. 10, 2022), https://www.bloomberg.com/news/articles/2022-03-10/sacklers-to-hear-from-opioid-victims-live-in-bankruptcy-court [https://perma.cc/2EHY-S4VW].Show More

That is what over two dozen individuals told three members of the Sackler family, the owners of the now-notorious Purdue Pharma drug company, as part of a larger recounting of how the immensely addictive painkiller OxyContin destroyed lives and killed loved ones.2 2.Id.; see also Brian Mann, For the First Time, Victims of the Opioid Crisis Formally Confront the Sackler Family, NPR (Mar. 10, 2022, 4:51 PM), https://www.npr.org/2022/‌03/10/1085174528/sackler-opioid-victims [https://perma.cc/6X8K-MRVB] (detailing the testimonies).Show More The Sacklers had to confront, in person, stories of dead children, lost spouses, and babies born with opioid dependencies.3 3.Hill, supra note 1.Show More

This opportunity for survivors and families of victims to be heard took place during Purdue Pharma’s chapter 11 bankruptcy case through which it sought to reorganize.4 4.Id.Show More Survivors and their families fought hard for the chance to face the Sacklers directly, which may ring as atypical for a legal proceeding that would resolve the claims that they held against Purdue Pharma and the Sacklers.5 5.See Mann, supra note 2 (noting the Sacklers’ lack of an apology for years during the opioid crisis).Show More That they asked and were allowed to confront the Sacklers as part of Purdue Pharma’s reorganization proceeding indeed was atypical for a bankruptcy case and also was unusual of most civil lawsuits. But the essence of what survivors and families of victims sought—for their allegations to be heard and to have some closure regarding their experiences—is precisely part of what the Sacklers were trying to avoid via Purdue Pharma’s chapter 11 case.

The Sacklers were not misguided in their expectations of what bankruptcy might provide them. That survivors and their families—in bankruptcy terms, claimants or creditors—had a voice in Purdue Pharma’s reorganization, including vis-à-vis related third parties like the Sacklers, was extraordinary. Some claimants in Purdue Pharma received confrontational justice. More typical of civil lawsuits, including multidistrict litigation of complex cases, is that plaintiffs have a robust ability, through their counsel, to engage in discovery about the alleged harms, to participate in the litigation, and to possibly gain some closure.

This process for the vindication of rights provides procedural justice, which supports the participation and dignity values that are vital for people to perceive legal processes as legitimate, and which is part of the fundamental constitutional principle of due process.6 6.See Pamela Foohey, A New Deal for Debtors: Providing Procedural Justice in Consumer Bankruptcy, 60 B.C. L. Rev. 2297, 2313–16 (2019) (discussing procedural justice); David Resnick, Due Process and Procedural Justice, in 18 Nomos 206 (J. Roland Pennock & John W. Chapman eds., 1977) (linking due process and procedural justice); infra Section IV.A.Show More Without procedural justice, those who allege harm suffer further from an inability to “have their wills ‘counted’[] in societal decisions they care about,” and people more generally lose faith in the legal system.7 7.Victor D. Quintanilla & Michael A. Yontz, Human-Centered Civil Justice Design: Procedural Justice and Process Value Pluralism, 54 Tulsa L. Rev. 113, 115, 140–41 (2018) (quoting Frank I. Michelman, The Supreme Court and Litigation Access Fees: The Right to Protect One’s Rights—Part I, 1973 Duke L.J. 1153, 1172).Show More The disappearance of opportunities for would-be plaintiffs to litigate their claims against defendants like the Sacklers when businesses seek to reorganize is exactly why for-profit and nonprofit corporations,8 8.In this Article, we generally use the term “corporation” to refer to the for-profit and nonprofit business entities that file chapter 11. Although not all businesses that have filed chapter 11 are organized as corporations, such as some of the Catholic dioceses, the majority are. For simplicity, we refer to businesses as “corporations.”Show More and the people associated with those businesses, are increasingly using chapter 11 to deal with what we term in this Article onslaught litigation.9 9.This term is inspired by the U.S. Court of Appeals for the Second Circuit’s discussion of the trust established in Johns-Manville’s chapter 11 case, which it filed to deal with mass tort litigation. Kane v. Johns-Manville Corp. (In re Johns-Manville Corp.), 843 F.2d 636, 640 (2d Cir. 1988) (“[T]he Plan seeks to ensure that health claims can be asserted only against the Trust and that Manville’s operating entities will be protected from an onslaught of crippling lawsuits that could jeopardize the entire reorganization effort.” (emphasis added)). Jonathan Lipson recently similarly defined what he terms “social debt” bankruptcies: “Social debt is financial liability for serious (e.g., criminal) misconduct, often involving violations of health and safety laws, made unsustainable due to persistent governance failures of transparency and accountability.” Jonathan C. Lipson, The Rule of the Deal: Bankruptcy Bargains and Other Misnomers, 97 Am. Bankr. L.J. 41, 43 (2023) [hereinafter Lipson, The Rule of the Deal]. Our definition of “onslaught litigation” is broader. It focuses less on the normative qualities of the underlying harms and more on the operational and time resources, including public relations resources, that a corporation may project it will have to devote to the litigation. Onslaught litigation includes violations of health and safety laws, sexual harassment, and criminal misconduct, but also may include, for example, allegations of underpaying workers, of price fixing, or of deceptive trade practices.Show More

Onslaught litigation, as we define the term, refers to alleged wrongful conduct that produces claims from multiple plaintiffs against the same defendant or group of defendants. When collected, the magnitude of claims and lawsuits presents the possible financial or operational crippling of the defendants over the long-term, or else will require the defendant to devote tremendous operational resources and time to the litigation because of its public saliency. Mass tort litigation is an example of onslaught litigation, such as the opioid liability faced by Purdue Pharma and the Sacklers, or the asbestos multidistrict and class action litigation that started in the 1980s.10 10.Infra Sections II.C, III.B.Show More

Although onslaught litigation typically presents as mass tort claims, it encompasses many more kinds of lawsuits.11 11.Mass tort litigation refers to the situation where many individuals have tort-based claims against a single or a handful or persons (or entities). See Douglas G. Smith, Resolution of Mass Tort Claims in the Bankruptcy System, 41 U.C. Davis L. Rev. 1613, 1616–26 (2008) (overviewing mass tort litigation); infra Section I.B.Show More It includes claims stemming from alleged harms that affect a smaller group of people and may yield only a handful of lawsuits, but which reflect very poorly on a corporation and its directors, officers, and owners. Examples of this type of onslaught litigation include allegations of rampant sexual abuse and harassment, such as Harvey Weinstein’s abuse and harassment of almost one hundred women.12 12.See Amelia Schonbek, The Complete List of Allegations Against Harvey Weinstein, N.Y.: The Cut (Jan. 6, 2020), https://www.thecut.com/2020/01/harvey-weinstein-complete-list-allegations.html [https://perma.cc/KE2C-Z5KK] (listing allegations).Show More Onslaught litigation also encompasses the prominent defamation cases against Alex Jones and Infowars for Jones’s repeatedly calling the 2012 shooting at the Sandy Hook Elementary School in Connecticut a “giant hoax.”13 13.Alex Jones, Infowars, and the Sandy Hook Defamation Suits, First Amend. Watch (Dec. 2, 2022), https://firstamendmentwatch.org/deep-dive/alex-jones-infowars-and-the-sandy-hoo‌k-defamation-suits [https://perma.cc/YX2J-BTJN].Show More

The critical connection among these examples is the significance of the accusations and lawsuits to a corporation’s continued smooth functioning now or continued function in the future. Magnitude refers both to the number of potential lawsuits, such as with mass torts, and to the public outrage and shock over even a few allegations and lawsuits. The prominence and public saliency of the allegations make the resulting lawsuits onslaught litigation. When faced with onslaught litigation, corporations’ directors, officers, and owners naturally want to truncate the lawsuits and minimize additional public discussion of the allegations.

Reorganizing via chapter 11 promises to collect and resolve most or all of the lawsuits and claims arising from the alleged wrongdoing. It also has the potential to decrease information available to the public about the allegations. 14 14.A chapter 11 filing, initially, will require a corporation to disclose more information than it would be required to disclose in civil litigation, especially given the use of protective orders. This Article is concerned with the totality of information that may be exposed via news stories about litigation and through litigation filed over decades, which a chapter 11 filing will cut off. Stated differently, corporations are trading the possibility of alleged wrongdoings circulating in the public for decades (or longer) for chapter 11’s immediate, short-term, and predictable information disclosure.Show More When corporations file chapter 11 in the wake of onslaught litigation, what they seek is two-fold: to bypass procedural justice and to shut down discussion of their purported wrongdoings.

Based on past chapter 11 proceedings, corporations’ directors and officers expect that negotiations will be allowed to take place between only a subset of parties, that discovery requests can be pushed back against forcefully, and that requests for examiners can be successfully fought. They also expect that related claims against business entities and people arising from the alleged wrongdoings that do not file bankruptcy will be swept into the reorganization case. They further expect that calls for shortening the reorganization process will be heeded and that bankruptcy law provisions designed to ensure claimants can vote on the proposed plan will only be nominally followed—usually under the guise of ensuring that victims receive as much money as possible.

Silencing people and sweeping the alleged harms under the proverbial rug become a byproduct of reassurances about making sure that victims are treated well. But it is the corporation and its leaders that benefit, not the people who they hurt. The chapter 11 case will end with a forever resolution of onslaught litigation claims against the corporation and third parties and with little public understanding of what the corporation sought to escape through bankruptcy. The corporation (and its owners) will continue to operate, effectively freed from its wrongdoing.15 15.See infra Part II for an overview of chapter 11 as applied to onslaught litigation.Show More

This Article argues that it is time for this destructive, targeted use of bankruptcy to be reined in and proposes how to limit and control those chapter 11 cases filed with a primary purpose of resolving onslaught litigation. In the past decade, chapter 11 cases filed to deal with onslaught litigation have made headline news. Some of these filings are discussed in the media and literature as mass tort bankruptcy cases such as: Catholic dioceses,16 16.Rebecca Klapper, 4 New York Dioceses File for Bankruptcy Due to Flood of Sexual Abuse Lawsuits, Newsweek (Aug. 13, 2021, 9:42 AM), https://www.newsweek.com/4-new-york-dioceses-file-bankruptcy-due-flood-sexual-abuse-lawsuits-1619136 [https://perma.cc/‌4G67-MLMT].Show More the Boy Scouts of America,17 17.Cara Kelly, Nathan Bomey & Lindsay Schnell, Boy Scouts Files Chapter 11 Bankruptcy in the Face of Thousands of Child Abuse Allegations, USA Today (May 18, 2020, 4:51 PM), https://www.usatoday.com/in-depth/news/investigations/2020/02/18/boy-scouts-bsa-chapter-11-bankruptcy-sexual-abuse-cases/1301187001 [https://perma.cc/M9Q7-WMH5].Show More and Purdue Pharma.18 18.Jan Hoffman & Mary Williams Walsh, Purdue Pharma, Maker of OxyContin, Files for Bankruptcy, N.Y. Times (Nov. 24, 2020), https://www.nytimes.com/2019/09/15/health/‌purdue-pharma-bankruptcy-opioids-settlement.html [https://perma.cc/7BMJ-S366].Show More Others involve onslaught litigation that may not be characterized as mass tort litigation: Bikram Yoga,19 19.Tracy Rucinski, Bikram Yoga Guru Seeks Bankruptcy in Wake of Harassment Claims, Reuters (Nov. 10, 2017, 3:55 PM), https://www.reuters.com/article/us-bikram-choudhury-yoga-bankruptcy/bikram-yoga-guru-seeks-bankruptcy-in-wake-of-harassment-claims-idUSKBN1DA2SA [https://perma.cc/9U6P-5FP2].Show More the Weinstein Companies,20 20.Brooks Barnes, Weinstein Company Files for Bankruptcy and Revokes Nondisclosure Agreements, N.Y. Times (Mar. 19, 2018), https://www.nytimes.com/2018/03/19/business/‌weinstein-company-bankruptcy.html [https://perma.cc/TE8R-MMBV].Show More USA Gymnastics,21 21.Rachel Axon, Nancy Armour & Tim Evans, USA Gymnastics Files for Bankruptcy, a Move Related to Larry Nassar’s Sexual Abuse Lawsuits, USA Today (Dec. 5, 2018, 5:40 PM), https://www.usatoday.com/story/sports/olympics/2018/12/05/usa-gymnastics-files-bankruptc‌y-nassar-lawsuits/2218546002 [https://perma.cc/3GEG-HBS3].Show More and Remington and Infowars after the Sandy Hook shooting.22 22.Sarah Jorgensen, Jason Hanna & Erica Hill, Sandy Hook Families Reach $73 Million Settlement with Gun Manufacturer Remington, CNN (Feb. 16, 2022, 5:04 AM), https://www.cnn.com/2022/02/15/us/sandy-hook-shooting-settlement-with-remington/index.‌html [https://perma.cc/BPT4-NFVJ]; Derrick Bryson Taylor, Alex Jones’s Infowars Files for Bankruptcy, N.Y. Times (Apr. 18, 2022, 5:15 PM), https://www.nytimes.com/2022/04/18/us/‌alex-jones-infowars-bankruptcy.html [https://perma.cc/2KJR-TWD3].Show More More recently, Johnson & Johnson (“J&J”) and 3M strategically placed certain of their corporate entities into bankruptcy to deal with onslaught litigation about particular products—claims that talcum powder caused cancer in hundreds of thousands of women in J&J’s case and claims that military earplugs harmed United States servicemembers in 3M’s case.23 23.Johnny Magdaleno, Major Bankruptcy Case Hits Indianapolis as Veterans Claim Combat Earplugs Were Faulty, IndyStar (Aug. 17, 2022, 7:21 AM), https://www.indystar.com/story/‌news/2022/08/16/major-bankruptcy-case-hits-indianapolis-veterans-sue-3m-subsidiary/6540‌4066007 [https://perma.cc/8KP3-5TCH]; Brian Mann, Rich Companies Are Using a Quiet Tactic to Block Lawsuits: Bankruptcy, NPR (Apr. 2, 2022, 7:00 AM), https://www.npr.org/‌2022/04/02/1082871843/rich-companies-are-using-a-quiet-tactic-to-block-lawsuits-bankrup‌tcy [https://perma.cc/R5QT-JCG6]. The Third Circuit subsequently dismissed J&J’s corporate entity’s case as a bad-faith filing. See infra note 120 and accompanying text. On April 4, 2023, J&J filed the same corporate entity in chapter 11 for a second time and, in doing so, proposed a $8.9 billion settlement. Evan Ochsner, Cancer Victims’ Lawyers Vow to Fight J&J Proposed Settlement, Bloomberg L. (Apr. 6, 2023, 1:40 PM), https://news.bloomberglaw.com/bankrupt‌cy-law/cancer-victims-lawyers-vow-to-fight-j-j-proposed-settlement [https://perma.cc/5PV‌D-XTL6]. Ralph Brubaker characterized the filing as a “rather audacious ploy.” Steven Church & Jef Feeley, J&J Begins ‘Audacious’ Return to Failed Cancer Settlement Tactic, Bloomberg L. (Apr. 5, 2023, 12:28 PM), https://news.bloomberglaw.com/bankruptcy-law/j-j-begins-audacious-return-to-failed-cancer-settlement-tactic [https://perma.cc/THA9-L7VP].Show More

Scholars have recently written about the problems inherent in using the chapter 11 process to deal with mass tort liabilities, including issues related to third-party releases, judge shopping, bypassing procedures, and the much-decried Texas Two-Step.24 24.See generally Melissa B. Jacoby, Sorting Bugs and Features of Mass Tort Bankruptcy, 101 Tex. L. Rev. (forthcoming 2023) (manuscript at 3) [hereinafter Jacoby, Sorting Bugs and Features], https://ssrn.com/abstract=4323151 [https://perma.cc/EG3B-7378] (detailing the extraordinary relief that corporations seek in bankruptcy, with a focus on mass tort bankruptcies); Jonathan C. Lipson, First in Time; First is Right: Comments on Levitin’s Poison Pill, 101 Tex. L. Rev. Online 33, 34 (2022) [hereinafter Lipson, First in Time] (discussing Adam Levitin’s article, Purdue’s Poison Pill, and third-party releases, appellate review, and venue); Ralph Brubaker, Mandatory Aggregation of Mass Tort Litigation in Bankruptcy, 131 Yale L.J.F. 960, 964–66 (2022) [hereinafter Brubaker, Mandatory Aggregation of Mass Tort Litigation in Bankruptcy] (advocating prohibiting nonconsensual third-party releases); Michael A. Francus, Texas Two-Stepping Out of Bankruptcy, 120 Mich. L. Rev. 38, 38–39 (2022) (discussing the Texas Two-Step, fraudulent transfer law, and good-faith challenges to chapter 11 filings); Adam J. Levitin, Purdue’s Poison Pill: The Breakdown of Chapter 11’s Checks and Balances, 100 Tex. L. Rev. 1079, 1083–84 (2022) [hereinafter Levitin, Purdue’s Poison Pill] (discussing coercive restructuring techniques, lack of appellate review, and forum shopping); Samir D. Parikh, The New Mass Torts Bargain, 91 Fordham L. Rev. 447, 455 (2022) [hereinafter Parikh, The New Mass Torts Bargain] (overviewing the intersection of mass torts and bankruptcy); Samir D. Parikh, Scarlet-Lettered Bankruptcy: A Public Benefit Proposal for Mass Tort Villains, 117 Nw. U. L. Rev. 425, 429–31 (2022) [hereinafter Parikh, Scarlet-Lettered Bankruptcy] (proposing that companies facing mass torts that file bankruptcy emerge as public benefit corporations); Lindsey D. Simon, Bankruptcy Grifters, 131 Yale L.J. 1154, 1159–61 (2022) [hereinafter Simon, Bankruptcy Grifters] (detailing how and when third-party releases should be granted); Melissa B. Jacoby, Shocking Business Bankruptcy Law, 131 Yale L.J.F. 409, 411–12 (2021) [hereinafter Jacoby, Shocking Business Bankruptcy Law] (pinpointing the harms of “off-label bankruptcy” and “bankruptcy à la carte,” including third-party releases); Adam J. Levitin, The Texas Two-Step: The New Fad in Fraudulent Transfers, Credit Slips (July 19, 2021, 10:50 AM) [hereinafter Levitin, The Texas Two-Step], https://www.creditslips.org/creditslips/2021/07/the-texas-two-step.html [https://perma.cc/MUQ2-AJDQ] (detailing the mechanics of the Texas Two-Step).Show More But the role of the bankruptcy system in people losing their ability to take part in litigation and the damage to procedural justice has been given short shrift—particularly in the wider context of onslaught litigation which may or may not be categorized as arising from a mass tort. Likewise absent from discussion in the literature is the way in which denying survivors a voice in onslaught litigation reorganization cases prevents light from being shed on problems such that the company (and its owners) can cabin how much public scrutiny they face.

This Article brings those concerns to the forefront. It thereby advances the literature from a discussion of mass tort bankruptcies largely tied to bankruptcy law provisions, constitutional concerns, and a traditional view of reorganization as a monetary-value-preserving venture,25 25.A few scholars have called out and deviated from this more traditional focus. See Jacoby, Sorting Bugs and Features, supra note 24 (manuscript at 11) (emphasizing the non-economic constitutional rights of future claimants); Jonathan C. Lipson, “Special”: Remedial Schemes in Mass Tort Bankruptcies, 101 Tex. L. Rev. 1773, 1778 (2023) [hereinafter Lipson, Remedial Schemes], (assessing “what actually happened in Purdue Pharma along familiar dimensions of ‘exit,’ ‘voice,’ and ‘loyalty’” (citing John C. Coffee, Jr., Class Action Accountability: Reconciling Exit, Voice, and Loyalty in Representative Litigation, 100 Colum. L. Rev. 370, 376 (2000))); Lipson, Rule of the Deal, supranote 9, at 44 (interrogating questions of transparency and accountability in “social debt” bankruptcies); infra notes 299–302 and accompanying text.Show More to an examination of the direct harms to people and public trust in corporations. It also expands the discussion of chapter 11 cases filed in the wake of litigation from mass torts to the broader context of our concept of onslaught litigation. It thus links headliner chapter 11 filings from the past couple of decades with a full history of mass tort bankruptcies in a manner not yet explored, but which underscores and explicates an integral motivator of recent chapter 11 filings that have provoked outrage and calls for a reexamination of the business bankruptcy system.

To make these points—and to explain our solutions—the Article proceeds as follows. Part I overviews how a corporation would resolve onslaught litigation, with a focus on mass tort cases, outside of the bankruptcy system. Part II compares this to how corporations can manage onslaught litigation in the bankruptcy system, including tracing the evolution of chapter 11’s use to deal with mass torts from asbestos litigation through intrauterine device (“IUD”) and breast implant product liability litigation. Part III relies on three case studies—Catholic dioceses, Purdue Pharma, and Infowars and Alex Jones—to build on how the prior use of bankruptcy to deal with mass torts has created the necessary conditions to allow defendants to leverage chapter 11 to silence victims and facilitate cover-ups in a wider variety of onslaught litigation. Part IV turns to a detailed explanation of the problems—the denial of victims’ voices, the destruction of procedural justice, and the suppression of information. Part V offers solutions. Although solving bankruptcy’s silencing problem may, almost necessarily, require more costly and longer reorganization cases, we argue that such a cost is worth it for people to have a voice and for upholding the integrity of both the justice system and the corporate economy.

  1.  Jeremy Hill, ‘I Do Not Forgive You:’ Opioid Victims Address Sacklers Directly, Bloomberg (Mar. 10, 2022), https://www.bloomberg.com/news/articles/2022-03-10/sacklers-to-hear-from-opioid-victims-live-in-bankruptcy-court [https://perma.cc/2EHY-S4VW]. ↑

  2.  Id.; see also Brian Mann, For the First Time, Victims of the Opioid Crisis Formally Confront the Sackler Family, NPR (Mar. 10, 2022, 4:51 PM), https://www.npr.org/2022/‌03/10/1085174528/sackler-opioid-victims [https://perma.cc/6X8K-MRVB] (detailing the testimonies). ↑

  3.  Hill, supra note 1. ↑

  4.  Id. ↑

  5.  See Mann, supra note 2 (noting the Sacklers’ lack of an apology for years during the opioid crisis). ↑

  6.  See Pamela Foohey, A New Deal for Debtors: Providing Procedural Justice in Consumer Bankruptcy, 60 B.C. L. Rev. 2297, 2313–16 (2019) (discussing procedural justice); David Resnick, Due Process and Procedural Justice, in 18 Nomos 206 (J. Roland Pennock & John W. Chapman eds., 1977) (linking due process and procedural justice); infra Section IV.A. ↑

  7.  Victor D. Quintanilla & Michael A. Yontz, Human-Centered Civil Justice Design: Procedural Justice and Process Value Pluralism, 54 Tulsa L. Rev. 113, 115, 140–41 (2018) (quoting Frank I. Michelman, The Supreme Court and Litigation Access Fees: The Right to Protect One’s Rights—Part I, 1973 Duke L.J. 1153, 1172). ↑

  8.  In this Article, we generally use the term “corporation” to refer to the for-profit and nonprofit business entities that file chapter 11. Although not all businesses that have filed chapter 11 are organized as corporations, such as some of the Catholic dioceses, the majority are. For simplicity, we refer to businesses as “corporations.” ↑

  9.  This term is inspired by the U.S. Court of Appeals for the Second Circuit’s discussion of the trust established in Johns-Manville’s chapter 11 case, which it filed to deal with mass tort litigation. Kane v. Johns-Manville Corp. (In re Johns-Manville Corp.), 843 F.2d 636, 640 (2d Cir. 1988) (“[T]he Plan seeks to ensure that health claims can be asserted only against the Trust and that Manville’s operating entities will be protected from an onslaught of crippling lawsuits that could jeopardize the entire reorganization effort.” (emphasis added)). Jonathan Lipson recently similarly defined what he terms “social debt” bankruptcies: “Social debt is financial liability for serious (e.g., criminal) misconduct, often involving violations of health and safety laws, made unsustainable due to persistent governance failures of transparency and accountability.” Jonathan C. Lipson, The Rule of the Deal: Bankruptcy Bargains and Other Misnomers, 97 Am. Bankr. L.J. 41, 43 (2023) [hereinafter Lipson, The Rule of the Deal]. Our definition of “onslaught litigation” is broader. It focuses less on the normative qualities of the underlying harms and more on the operational and time resources, including public relations resources, that a corporation may project it will have to devote to the litigation. Onslaught litigation includes violations of health and safety laws, sexual harassment, and criminal misconduct, but also may include, for example, allegations of underpaying workers, of price fixing, or of deceptive trade practices. ↑

  10.  Infra Sections II.C, III.B. ↑

  11.  Mass tort litigation refers to the situation where many individuals have tort-based claims against a single or a handful or persons (or entities). See Douglas G. Smith, Resolution of Mass Tort Claims in the Bankruptcy System, 41 U.C. Davis L. Rev. 1613, 1616–26 (2008) (overviewing mass tort litigation); infra Section I.B. ↑

  12.  See Amelia Schonbek, The Complete List of Allegations Against Harvey Weinstein, N.Y.: The Cut (Jan. 6, 2020), https://www.thecut.com/2020/01/harvey-weinstein-complete-list-allegations.html [https://perma.cc/KE2C-Z5KK] (listing allegations). ↑

  13.  Alex Jones, Infowars, and the Sandy Hook Defamation Suits, First Amend. Watch (Dec. 2, 2022), https://firstamendmentwatch.org/deep-dive/alex-jones-infowars-and-the-sandy-hoo‌k-defamation-suits [https://perma.cc/YX2J-BTJN]. ↑

  14.  A chapter 11 filing, initially, will require a corporation to disclose more information than it would be required to disclose in civil litigation, especially given the use of protective orders. This Article is concerned with the totality of information that may be exposed via news stories about litigation and through litigation filed over decades, which a chapter 11 filing will cut off. Stated differently, corporations are trading the possibility of alleged wrongdoings circulating in the public for decades (or longer) for chapter 11’s immediate, short-term, and predictable information disclosure. ↑

  15.  See infra Part II for an overview of chapter 11 as applied to onslaught litigation. ↑

  16.  Rebecca Klapper, 4 New York Dioceses File for Bankruptcy Due to Flood of Sexual Abuse Lawsuits, Newsweek (Aug. 13, 2021, 9:42 AM), https://www.newsweek.com/4-new-york-dioceses-file-bankruptcy-due-flood-sexual-abuse-lawsuits-1619136 [https://perma.cc/‌4G67-MLMT]. ↑

  17.  Cara Kelly, Nathan Bomey & Lindsay Schnell, Boy Scouts Files Chapter 11 Bankruptcy in the Face of Thousands of Child Abuse Allegations, USA Today (May 18, 2020, 4:51 PM), https://www.usatoday.com/in-depth/news/investigations/2020/02/18/boy-scouts-bsa-chapter-11-bankruptcy-sexual-abuse-cases/1301187001 [https://perma.cc/M9Q7-WMH5]. ↑

  18.  Jan Hoffman & Mary Williams Walsh, Purdue Pharma, Maker of OxyContin, Files for Bankruptcy, N.Y. Times (Nov. 24, 2020), https://www.nytimes.com/2019/09/15/health/‌purdue-pharma-bankruptcy-opioids-settlement.html [https://perma.cc/7BMJ-S366]. ↑

  19.  Tracy Rucinski, Bikram Yoga Guru Seeks Bankruptcy in Wake of Harassment Claims, Reuters (Nov. 10, 2017, 3:55 PM), https://www.reuters.com/article/us-bikram-choudhury-yoga-bankruptcy/bikram-yoga-guru-seeks-bankruptcy-in-wake-of-harassment-claims-idUSKBN1DA2SA [https://perma.cc/9U6P-5FP2]. ↑

  20.  Brooks Barnes, Weinstein Company Files for Bankruptcy and Revokes Nondisclosure Agreements, N.Y. Times (Mar. 19, 2018), https://www.nytimes.com/2018/03/19/business/‌weinstein-company-bankruptcy.html [https://perma.cc/TE8R-MMBV]. ↑

  21.  Rachel Axon, Nancy Armour & Tim Evans, USA Gymnastics Files for Bankruptcy, a Move Related to Larry Nassar’s Sexual Abuse Lawsuits, USA Today (Dec. 5, 2018, 5:40 PM), https://www.usatoday.com/story/sports/olympics/2018/12/05/usa-gymnastics-files-bankruptc‌y-nassar-lawsuits/2218546002 [https://perma.cc/3GEG-HBS3]. ↑

  22.  Sarah Jorgensen, Jason Hanna & Erica Hill, Sandy Hook Families Reach $73 Million Settlement with Gun Manufacturer Remington, CNN (Feb. 16, 2022, 5:04 AM), https://www.cnn.com/2022/02/15/us/sandy-hook-shooting-settlement-with-remington/index.‌html [https://perma.cc/BPT4-NFVJ]; Derrick Bryson Taylor, Alex Jones’s Infowars Files for Bankruptcy, N.Y. Times (Apr. 18, 2022, 5:15 PM), https://www.nytimes.com/2022/04/18/us/‌alex-jones-infowars-bankruptcy.html [https://perma.cc/2KJR-TWD3]. ↑

  23.  Johnny Magdaleno, Major Bankruptcy Case Hits Indianapolis as Veterans Claim Combat Earplugs Were Faulty, IndyStar (Aug. 17, 2022, 7:21 AM), https://www.indystar.com/story/‌news/2022/08/16/major-bankruptcy-case-hits-indianapolis-veterans-sue-3m-subsidiary/6540‌4066007 [https://perma.cc/8KP3-5TCH]; Brian Mann, Rich Companies Are Using a Quiet Tactic to Block Lawsuits: Bankruptcy, NPR (Apr. 2, 2022, 7:00 AM), https://www.npr.org/‌2022/04/02/1082871843/rich-companies-are-using-a-quiet-tactic-to-block-lawsuits-bankrup‌tcy [https://perma.cc/R5QT-JCG6]. The Third Circuit subsequently dismissed J&J’s corporate entity’s case as a bad-faith filing. See infra note 120 and accompanying text. On April 4, 2023, J&J filed the same corporate entity in chapter 11 for a second time and, in doing so, proposed a $8.9 billion settlement. Evan Ochsner, Cancer Victims’ Lawyers Vow to Fight J&J Proposed Settlement, Bloomberg L. (Apr. 6, 2023, 1:40 PM), https://news.bloomberglaw.com/bankrupt‌cy-law/cancer-victims-lawyers-vow-to-fight-j-j-proposed-settlement [https://perma.cc/5PV‌D-XTL6]. Ralph Brubaker characterized the filing as a “rather audacious ploy.” Steven Church & Jef Feeley, J&J Begins ‘Audacious’ Return to Failed Cancer Settlement Tactic, Bloomberg L. (Apr. 5, 2023, 12:28 PM), https://news.bloomberglaw.com/bankruptcy-law/j-j-begins-audacious-return-to-failed-cancer-settlement-tactic [https://perma.cc/THA9-L7VP]. ↑

  24.  See generally Melissa B. Jacoby, Sorting Bugs and Features of Mass Tort Bankruptcy, 101 Tex. L. Rev. (forthcoming 2023) (manuscript at 3) [hereinafter Jacoby, Sorting Bugs and Features], https://ssrn.com/abstract=4323151 [https://perma.cc/EG3B-7378] (detailing the extraordinary relief that corporations seek in bankruptcy, with a focus on mass tort bankruptcies); Jonathan C. Lipson, First in Time; First is Right: Comments on Levitin’s Poison Pill, 101 Tex. L. Rev. Online 33, 34 (2022) [hereinafter Lipson, First in Time] (discussing Adam Levitin’s article, Purdue’s Poison Pill, and third-party releases, appellate review, and venue); Ralph Brubaker, Mandatory Aggregation of Mass Tort Litigation in Bankruptcy, 131 Yale L.J.F. 960, 964–66 (2022) [hereinafter Brubaker, Mandatory Aggregation of Mass Tort Litigation in Bankruptcy] (advocating prohibiting nonconsensual third-party releases); Michael A. Francus, Texas Two-Stepping Out of Bankruptcy, 120 Mich. L. Rev. 38, 38–39 (2022) (discussing the Texas Two-Step, fraudulent transfer law, and good-faith challenges to chapter 11 filings); Adam J. Levitin, Purdue’s Poison Pill: The Breakdown of Chapter 11’s Checks and Balances, 100 Tex. L. Rev. 1079, 1083–84 (2022) [hereinafter Levitin, Purdue’s Poison Pill] (discussing coercive restructuring techniques, lack of appellate review, and forum shopping); Samir D. Parikh, The New Mass Torts Bargain, 91 Fordham L. Rev. 447, 455 (2022) [hereinafter Parikh, The New Mass Torts Bargain] (overviewing the intersection of mass torts and bankruptcy); Samir D. Parikh, Scarlet-Lettered Bankruptcy: A Public Benefit Proposal for Mass Tort Villains, 117 Nw. U. L. Rev. 425, 429–31 (2022) [hereinafter Parikh, Scarlet-Lettered Bankruptcy] (proposing that companies facing mass torts that file bankruptcy emerge as public benefit corporations); Lindsey D. Simon, Bankruptcy Grifters, 131 Yale L.J. 1154, 1159–61 (2022) [hereinafter Simon, Bankruptcy Grifters] (detailing how and when third-party releases should be granted); Melissa B. Jacoby, Shocking Business Bankruptcy Law, 131 Yale L.J.F. 409, 411–12 (2021) [hereinafter Jacoby, Shocking Business Bankruptcy Law] (pinpointing the harms of “off-label bankruptcy” and “bankruptcy à la carte,” including third-party releases); Adam J. Levitin, The Texas Two-Step: The New Fad in Fraudulent Transfers, Credit Slips (July 19, 2021, 10:50 AM) [hereinafter Levitin, The Texas Two-Step], https://www.creditslips.org/creditslips/2021/07/the-texas-two-step.html [https://perma.cc/MUQ2-AJDQ] (detailing the mechanics of the Texas Two-Step). ↑

  25.  A few scholars have called out and deviated from this more traditional focus. See Jacoby, Sorting Bugs and Features, supra note 24 (manuscript at 11) (emphasizing the non-economic constitutional rights of future claimants); Jonathan C. Lipson, “Special”: Remedial Schemes in Mass Tort Bankruptcies, 101 Tex. L. Rev. 1773, 1778 (2023) [hereinafter Lipson, Remedial Schemes], (assessing “what actually happened in Purdue Pharma along familiar dimensions of ‘exit,’ ‘voice,’ and ‘loyalty’” (citing John C. Coffee, Jr., Class Action Accountability: Reconciling Exit, Voice, and Loyalty in Representative Litigation, 100 Colum. L. Rev. 370, 376 (2000))); Lipson, Rule of the Deal, supra note 9, at 44 (interrogating questions of transparency and accountability in “social debt” bankruptcies); infra notes 299–302 and accompanying text. ↑

Municipal Immunity

Although qualified immunity has taken center stage in recent debates about police misconduct and paths to reform, this Article focuses on another doctrine that has been largely overlooked yet merits at least equal attention—the standards for holding local governments liable for constitutional violations of their officers (also referred to as Monell doctrine, in reference to the Supreme Court case that first recognized the right to sue municipalities under Section 1983).

This Article reports the findings of the largest and most comprehensive study to date examining and comparing the challenges of qualified immunity and Monell doctrine in almost 1,200 police misconduct lawsuits filed in five federal districts across the country. I find that it is far more difficult for plaintiffs to prove Monell claims against municipalities than it is for plaintiffs to defeat qualified immunity. In my dataset, local governments challenged Monell claims more often than individual defendants raised qualified immunity—at both the motion to dismiss and summary judgment stages—and, at both stages, courts dismissed Monell claims more often than they granted officers qualified immunity. Plaintiffs regularly abandoned their Monell claims against local governments during the course of litigation as well. Very few Monell claims made it to trial; even fewer succeeded. If popular commentary has overstated the harms of qualified immunity doctrine, it has understated the challenges of Monell.

To ensure that people are compensated when their constitutional rights are violated, local governments should be held vicariously liable for their officers’ constitutional violations. Strengthening the deterrent effect of Section 1983 suits on officers and local governments is a more complicated task, but a package of state and local reforms I outline holds promise. These proposed reforms may be even more important than ending qualified immunity to our system of constitutional remediation; they may also be more palatable to lawmakers and law enforcement officials who have thus far opposed ending qualified immunity. This may be one of those rare instances when the most pressing reform—ending Monell—is also the most pragmatic.

Introduction

Qualified immunity has taken center stage in recent debates about police misconduct and paths to reform. In the weeks after George Floyd’s murder in May 2020, people held handwritten signs in protests across the country, calling for the defense’s abolition.1 1.See, e.g., Hailey Fuchs, Qualified Immunity Protection for Police Emerges as Flash Point Amid Protests, N.Y. Times (Oct. 18, 2021), https://www.nytimes.com/2020/06/23/us/politics/‌qualified-immunity.html [https://perma.cc/PS4C-ZQSX]; Kimberly Kindy, Dozens of States Have Tried to End Qualified Immunity. Police Officers and Unions Helped Beat Nearly Every Bill., Wash. Post (Oct. 7, 2021, 6:00 AM), https://www.washingtonpost.com/politics/‌qualified-immunity-police-lobbying-state-legislatures/2021/10/06/60e546bc-0cdf-11ec-aea1‌-42a8138f132a_story.html [https://perma.cc/4QUY-WC9M].Show More Eliminating qualified immunity quickly became a key component of proposed legislation introduced in Congress and state legislatures to shore up civil rights protections.2 2.See, e.g., Madeleine Carlisle, The Debate Over Qualified Immunity Is at the Heart of Police Reform. Here’s What to Know, Time (June 3, 2021, 6:35 PM), https://time.com/‌6061624/what-is-qualified-immunity/ [https://perma.cc/GCB4-72PG] (describing Congress’s George Floyd Justice in Policing Act); Kindy, supranote 1 (describing state legislative efforts).Show More Following the January 2023 killing of Tyre Nichols by Memphis police officers,3 3.Jonathan Franklin & Emma Bowman, What We Know About the Killing of Tyre Nichols, NPR (Jan. 28, 2023, 4:50 PM), https://www.npr.org/2023/01/28/1151504967/tyre-nichols-memphis-police-body-cam-video [https://perma.cc/JGR2-D7Z2].Show More calls to end qualified immunity resumed with comparable passion.4 4.See, e.g., Rep. Justin Amash (@justinamash), Twitter (Jan. 28, 2023, 10:58 AM), https://twitter.com/justinamash/status/1619364385214066688 [https://perma.cc/V97Z-Z3‌SA] (“Reintroduce and pass my tripartisan legislation to end qualified immunity.”); Rep. Ilhan Omar (@IlhanMN), Twitter (Jan. 27, 2023, 9:12 PM), https://twitter.com/IlhanMN/status/‌1619156319923212288 [https://perma.cc/6EQ7-75VM] (“End Qualified Immunity!”).Show More

Qualified immunity is a deserving target of criticism—it shields individual officers from civil liability, even when they have violated the Constitution, simply because there is no prior court opinion holding unconstitutional nearly identical facts.5 5.See, e.g., Carlisle, supra note 2; Joanna C. Schwartz, Suing Police for Abuse Is Nearly Impossible. The Supreme Court Can Fix That., Wash. Post (June 3, 2020, 2:17 PM), https://www.washingtonpost.com/outlook/2020/06/03/police-abuse-misconduct-supreme-co‌urt-immunity/ [https://perma.cc/TA4E-VN5H].Show More And although the U.S. Supreme Court has justified qualified immunity as necessary to protect officers from the costs and burdens of litigation in “insubstantial” cases,6 6.Harlow v. Fitzgerald, 457 U.S. 800, 813 (1982).Show More available evidence makes clear that the doctrine is neither necessary nor well-suited to achieve these policy goals.7 7.See Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2, 60–64 (2017) [hereinafter Schwartz, How Qualified Immunity Fails] (finding, based on a review of 1,183 police misconduct cases, that qualified immunity leads to the dismissal of less than 4% of civil rights cases, undermining the role of qualified immunity as a protection against the burdens of discovery and trial, and may actually increase litigation costs); Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 938–43 (2014) [hereinafter Schwartz, Police Indemnification] (showing that officers virtually never contribute to settlements and judgments against them, limiting the need for qualified immunity to protect officers from financial liability).Show More But there is another legal doctrine that has been largely overlooked8 8.For a few exceptions, see Mark C. Niles, Here’s a More Important Reform than Ending Qualified Immunity,LawFare (May 18, 2021, 2:13 PM), https://www.lawfareblog.com/heres-more-important-reform-ending-qualified-immunity [https://perma.cc/84VD-Z84Y]; Orion de Nevers, A Dubious Legal Doctrine Protects Cities from Lawsuits over Police Brutality, Slate (June 2, 2020, 2:16 PM), https://slate.com/news-and-politics/2020/06/monell-supreme-court-qualified-immunity.html [https://perma.cc/PM6B-GM3B]. Municipal liability has been a more sustained focus of study and criticism among scholars and advocates. For examples of this research and commentary, see infraSection I.C.Show More in the current debate about civil rights enforcement, yet merits comparable attention and critique—the standard for holding local governments liable for the constitutional violations of their officers.

In 1978, in Monell v. Department of Social Services, the Supreme Court first ruled that local governments could be sued under 42 U.S.C. § 1983 for constitutional violations by their employees.9 9.436 U.S. 658, 663 (1978).Show More But the Court ruled that local governments could not be held vicariously liable for their employees’ constitutional violations—as private employers are for the torts of their employees.10 10.Id. at 691–95.Show More Instead, a plaintiff must prove that the local government had an unlawful policy or custom that caused their employee to violate the Constitution.11 11.Id.at 694 (“[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.”).Show More

Monell, and the Supreme Court’s and lower courts’ decisions that have developed the contours of Monell doctrine over the past forty-five years, have inspired harsh critique.12 12.These critiques, along with an overview of the history of Monell doctrine and its contours, are outlined in Part I.Show More Some argue that the Court’s rejection of respondeat superior liability in its Monell decision was based on a misunderstanding of the legal landscape in 1871, when Section 1983 became law, as well as the statute’s legislative history.13 13.See infranote 89 and accompanying text.Show More Commentators criticize the various theories that have emerged for proving municipal liability under Monell as exceedingly complex and indeterminate—a “maze,” in Karen Blum’s view.14 14.Karen M. Blum, Section 1983 Litigation: The Maze, the Mud, and the Madness, 23 Wm. & Mary Bill Rts. J. 913, 914 (2015); see also infranotes 90–91 and accompanying text (describing critiques of Monell doctrine’s complexity).Show More And many contend that Monell’s standards are so difficult for plaintiffs to satisfy that municipal liability is “practically unavailable to litigants.”15 15.Brian J. Serr, Turning Section 1983’s Protection of Civil Rights into an Attractive Nuisance: Extra-Textual Barriers to Municipal Liability Under Monell, 35 Ga. L. Rev. 881, 883 (2001); see also infra notes 92–96 and accompanying text (describing the prevailing view that it is nearly impossible for plaintiffs to prevail on Monell claims).Show More

Monell’s historical critique is well documented. The critique of Monell’s complex and indeterminate standards is self-evident. Yet, the claim that it is near-impossible to prevail on Monell claims is based on little more than anecdote and supposition. Over the past several years, we have come to learn a great deal about how qualified immunity works on the ground—how it influences attorneys’ decisions about whether to take a case;16 16.See generally Alexander A. Reinert, Does Qualified Immunity Matter?, 8 U. St. Thomas L.J. 477 (2011) (presenting the results of a study examining how qualified immunity influences attorneys’ decisions about whether to file Bivens claims against federal officials); Joanna C. Schwartz, Qualified Immunity’s Selection Effects, 114 Nw. U. L. Rev. 1101 (2020) (presenting the results of a study examining how qualified immunity influences attorneys’ decisions about whether to file § 1983 claims against law enforcement defendants).Show More the frequency with which the defense is raised, granted by courts, and is dispositive;17 17.See generally Schwartz, How Qualified Immunity Fails, supranote 7 (reporting these findings).Show More the role that it plays at trial;18 18.See Alexander A. Reinert, Qualified Immunity at Trial, 93 Notre Dame L. Rev. 2065, 2068 (2018) (finding that “juries are rarely instructed on qualified immunity, nor are they routinely asked to resolve disputed factual questions that might bear on application of the defense,” but that “when juries are instructed on qualified immunity, plaintiffs are much less likely to prevail at trial”).Show More and the success of qualified immunity on appeal.19 19.See generally Aaron L. Nielson & Christopher J. Walker, Strategic Immunity, 66 Emory L.J. 55 (2016) (measuring variation among circuit judges in their assessment of qualified immunity appeals); Alexander A. Reinert, Qualified Immunity on Appeal: An Empirical Assessment (Cardozo L. Sch. Fac. Rsch. Paper No. 634, 2021), https://ssrn.com/abstract‌=3798024 [https://perma.cc/WJR2-KWVZ] (finding that appellate courts reverse decisions denying qualified immunity far more often than they reverse decisions granting qualified immunity).Show More But we have comparably little understanding of how federal constitutional claims against local governments fare in court.20 20.For important research about municipal liability claims that is a clear exception to this general observation, see Nancy Leong, Municipal Failures, 108 Cornell L. Rev. 345, 380 (2023) [hereinafter Leong, Municipal Failures] (examining the success of failure-to-supervise claims on appeal and arguing that such claims are often overlooked by attorneys but successful in court); Nancy Leong, Civil Rights Liability for Bad Hiring 1, 46–49 (Aug. 8, 2023) (unpublished manuscript) (on file with author) (examining the difficulty of proving failure-to-screen claims). See generally Nancy Leong, Katelyn Elrod & Matthew Nilsen, Pleading Failures inMonell Litigation, Emory L.J. (forthcoming 2024), https://papers.ssrn.com/sol3/‌papers.cfm?abstract_id=4378738 [https://perma.cc/MK7R-PZAX] (examining widespread deficiencies in complaints’ Monell allegations).Show More How often do plaintiffs sue local governments for the constitutional violations of their officers? How often do local governments seek to dismiss these claims before and after discovery? How often do courts grant governments’ motions? How often do plaintiffs abandon their Monell claims?

In this Article, I begin to fill these critically important gaps. In 2017, I published a study that analyzed the federal dockets of 1,183 lawsuits filed against law enforcement defendants over a two-year period in five federal district courts across the country to better understand the role qualified immunity actually plays in police misconduct cases.21 21.See generally Schwartz, How Qualified Immunity Fails, supra note 7 (finding that fewer than 4% of the police misconduct cases filed were dismissed on qualified immunity grounds, offering possible explanations for these findings, and considering their implications for qualified immunity doctrine’s goals).Show More In this Article, I examine those same 1,183 federal case dockets to understand how Monell claims fared in these lawsuits.

In my 2017 study, I concluded that qualified immunity doctrine had a more nuanced impact on police misconduct cases than is suggested in court opinions and critical commentary.22 22.See id. at 9–11; see also Joanna C. Schwartz, After Qualified Immunity, 120 Colum. L. Rev. 309, 316–17 (2020) [hereinafter Schwartz, After Qualified Immunity] (offering several predictions about how constitutional litigation would function in a world without qualified immunity).Show More I found that qualified immunity doctrine increases the burdens and time spent on civil rights cases for plaintiffs’ attorneys, and likely discourages lawyers from taking some civil rights cases.23 23.See Schwartz, How Qualified Immunity Fails, supra note 7, at 50–51 (arguing that qualified immunity increases the costs and time necessary to litigate civil rights cases, and may discourage attorneys from accepting civil rights cases); Schwartz, After Qualified Immunity, supranote 22, at 338–51 (same).Show More But qualified immunity is raised by defendants and granted by courts less frequently than is suggested in popular critiques, and is the reason a relatively small percentage of civil rights cases are dismissed.24 24.See Schwartz, How Qualified Immunity Fails, supranote 7, at 48–49 (describing these findings).Show More

Having reviewed these same cases to understand how constitutional claims against local governments progress in federal courts, I find that the doctrine makes it extremely difficult for plaintiffs to prevail on Monell claims challenging police policies and practices. If popular commentary has overstated the harms of qualified immunity doctrine, it has understated the challenges of Monell.

It is far more difficult for plaintiffs to prove Monell claims against municipalities than it is for plaintiffs to defeat qualified immunity when raised by individual government defendants.25 25.I outline these findings in Part II.Show More In my dataset, local governments challenged municipal liability claims more often than individual defendants raised qualified immunity—at both the motion to dismiss and summary judgment stages—and, at both stages, courts dismissed Monell claims more often than they granted officers qualified immunity. Plaintiffs regularly abandoned their Monell claims against local governments during the course of litigation as well. Very few Monell claims made it to trial; even fewer succeeded.

Careful study of the dockets and decisions in my dataset suggests several reasons that it might be so difficult to plead and prove Monell claims.26 26.I describe these possible explanations for my findings in Part III.Show More First, the plausibility standard articulated by the Supreme Court in Iqbal and Twombly makes it particularly challenging for plaintiffs to survive motions to dismiss;27 27.See infra notes 121–26 (outlining findings in the dataset); infra notes 153–57 and accompanying text (presenting the plausibility standard theory).Show More in many cases, plaintiffs cannot find the type of evidence that would support their Monell claims without formal discovery. Second, at summary judgment, plaintiffs have a heavy burden—in addition to proving that their constitutional rights were violated, they must come forth with evidence of an unconstitutional policy or a pattern of prior misconduct that suggests an unwritten policy, the policymaker’s deliberate indifference to that prior misconduct, and proof that that deliberate indifference caused the constitutional violation.28 28.See Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 411 (1997); City of Canton v. Harris, 489 U.S. 378, 388–89 (1989).Show More Even when plaintiffs managed to offer proof to support each of these elements, courts in my dataset found that the evidence was not sufficient to create a material factual dispute. Third, Monell claims are expensive, even at the pleadings stage, and these costs may lead plaintiffs to abandon their Monell claims—especially if the named officers are likely to be indemnified. Fourth, Monell doctrine is unsettled;29 29.See, e.g., Michael Avery, David Rudovsky, Karen M. Blum & Jennifer Laurin, Police Misconduct Law and Litigation § 4:15 (3d ed. 2022) (“Despite the resolution of several principal questions in this area by the Supreme Court, one should still expect both factual and legal issues to be hotly contested where municipal liability claims are made.”); see also infranotes 199–201 and accompanying text (describing intra-circuit disagreement about how to apply Iqbal’s “plausibility” pleading standard to Monell claims).Show More multiple open questions lead courts to apply widely varying standards, even in the same circuit, which likely encourages defendants to file more motions and creates greater uncertainties for plaintiffs evaluating the costs and benefits of pursuing a Monell claim.

Having explored the challenges associated with bringing Monell claims, I next consider the extent to which these challenges frustrate our system of civil rights remediation.30 30.I set out these challenges in Part IV.Show More Some commentators—myself included—have observed that the difficulty of prevailing on Monell claims may matter little because individual officers can be sued and are almost always indemnified by their government employers.31 31.See infranote 205 and accompanying text.Show More Further reflection and research has led me to reconsider this view. It is true that when a plaintiff prevails against an officer and the local government indemnifies, she effectively recovers from the city, even if her Monell claim fails. It is also true that, as I found in a prior study, local governments—not officers—pay 99.98% of the money received by plaintiffs in police misconduct cases.32 32.See generally Schwartz, Police Indemnification, supranote 7, at 890 (“Between 2006 and 2011, in forty-four of the country’s largest jurisdictions, officers financially contributed to settlements and judgments in just .41% of the approximately 9225 civil rights damages actions resolved in plaintiffs’ favor, and their contributions amounted to just .02% of the over $730 million spent by cities, counties, and states in these cases.”).Show More But, despite the ubiquity of indemnification, there are multiple ways in which municipal immunity enlarges the schism between right and remedy. If an officer who violated a person’s constitutional rights is denied indemnification, or granted qualified immunity, or cannot be identified by name, a Monell claim against the local government can be the only opportunity to recover. Monell claims can also afford the only way to win a judgment against a local government that may create political pressure to change, and secure injunctive relief.

Section 1983 was enacted more than 150 years ago as a means to compensate people whose constitutional rights have been violated and deter future misconduct.33 33.See Monroe v. Pape, 365 U.S. 167, 171 (1961) (describing the historical context of Section 1983).Show More Monell doctrine in its current form undermines both of these values. To ensure that people are compensated, local governments should be held vicariously liable when their officers violate the Constitution. Strengthening the deterrent effect of Section 1983 suits on officers and local governments is a more complicated task, but a package of state and local reforms I outline holds promise.34 34.These proposals are described in further detail inPart V.Show More

My recommendations, although ambitious, are not merely academic musings. Indeed, these types of changes to municipal liability doctrine may actually be more politically palatable than are proposals to do away with qualified immunity. Critics of qualified immunity reform rest their opposition on the (baseless) concern that officers will be bankrupted for reasonable mistakes and “leave the profession in droves”;35 35.See, e.g., Kindy, supra note 1 (“[State legislative efforts to limit qualified immunity] failed amid multifaceted lobbying campaigns by police officers and their unions targeting legislators, many of whom feared public backlash if the dire predictions by police came true. Officers said they would go bankrupt and lose their homes. They said their colleagues would leave the profession in droves.”).Show More vicarious liability for local governments would eliminate these concerns about officers’ bank accounts and motivations.36 36.For bills introduced by Congress and state legislatures, and enacted in New Mexico, that would make local governments vicariously liable for constitutional violations by their officers, see infranotes 261–64 and accompanying text.Show More Perhaps for this reason, Republican Senators Tim Scott and Lindsey Graham, who are staunchly opposed to any provision ending qualified immunity, have each signaled that they favor holding local governments liable for their officers’ constitutional violations.37 37.See Billy Binion, Tim Scott Is Proposing a Major Reform to Qualified Immunity, Reason (Apr. 22, 2021, 12:24 PM), https://reason.com/2021/04/22/tim-scott-is-proposing-a-major-reform-to-qualified-immunity/ [https://perma.cc/Q2QA-D6ZE] (describing Senator Scott’s proposal to create vicarious liability during police reform legislation negotiations after George Floyd’s death); Janice Hisle, In Wake of Tyre Nichols’s Death, Sen. Lindsey Graham Suggests Policing Reform Compromise, Epoch Times (Jan. 31, 2023), https://www.theepochtimes.‌com/in-wake-of-tyre-nichols-death-sen-lindsey-graham-suggests-policing-reform-compromi‌se_5020259.html [https://perma.cc/5ZW8-LDEM] (describing Senator Graham’s suggestion that police departments be held liable following the killing of Tyre Nichols). For articles describing Senator Scott’s and Senator Graham’s opposition to qualified immunity reform, see Sahil Kapur & Scott Wong, Senators Aim to Revive Police Reform Talks but Face Major Hurdles, NBC News (Jan. 30, 2023, 8:58 PM), https://www.nbcnews.com/politics/congress/‌senators-aim-revive-police-reform-talks-face-major-hurdles-rcna68171 [https://perma.cc/R5‌ZQ-RHET] (“I think qualified immunity should stay in place for individual officers, but I’ve always been of the view that departments need to be held accountable.” (quoting Senator Graham)); Melissa Quinn, Tim Scott Says Ending Qualified Immunity Is “Poison Pill” in Police Reform Bill, CBS News (June 14, 2020, 9:48 AM), https://www.cbsnews.com/news/‌tim-scott-police-reform-bill-qualified-immunity-face-the-nation/ [https://perma.cc/L9JA-7W‌DN] (“From the Republican perspective, and the president has sent a signal that qualified immunity is off the table. They see that as a poison pill on our side.” (quoting Senator Scott)).Show More

The injustices of qualified immunity have been a worthy focus of reform efforts in recent years. But vicarious liability for local governments is an equally important goal—and a more achievable one. Alongside handwritten signs demanding an end to qualified immunity, it is time to start raising signs reading “End Monell.”

  1.  See, e.g., Hailey Fuchs, Qualified Immunity Protection for Police Emerges as Flash Point Amid Protests, N.Y. Times (Oct. 18, 2021), https://www.nytimes.com/2020/06/23/us/politics/‌qualified-immunity.html [https://perma.cc/PS4C-ZQSX]; Kimberly Kindy, Dozens of States Have Tried to End Qualified Immunity. Police Officers and Unions Helped Beat Nearly Every Bill., Wash. Post (Oct. 7, 2021, 6:00 AM), https://www.washingtonpost.com/politics/‌qualified-immunity-police-lobbying-state-legislatures/2021/10/06/60e546bc-0cdf-11ec-aea1‌-42a8138f132a_story.html [https://perma.cc/4QUY-WC9M]. ↑
  2.  See, e.g., Madeleine Carlisle, The Debate Over Qualified Immunity Is at the Heart of Police Reform. Here’s What to Know, Time (June 3, 2021, 6:35 PM), https://time.com/‌6061624/what-is-qualified-immunity/ [https://perma.cc/GCB4-72PG] (describing Congress’s George Floyd Justice in Policing Act); Kindy, supra note 1 (describing state legislative efforts). ↑
  3.  Jonathan Franklin & Emma Bowman, What We Know About the Killing of Tyre Nichols, NPR (Jan. 28, 2023, 4:50 PM), https://www.npr.org/2023/01/28/1151504967/tyre-nichols-memphis-police-body-cam-video [https://perma.cc/JGR2-D7Z2]. ↑
  4.  See, e.g., Rep. Justin Amash (@justinamash), Twitter (Jan. 28, 2023, 10:58 AM), https://twitter.com/justinamash/status/1619364385214066688 [https://perma.cc/V97Z-Z3‌SA] (“Reintroduce and pass my tripartisan legislation to end qualified immunity.”); Rep. Ilhan Omar (@IlhanMN), Twitter (Jan. 27, 2023, 9:12 PM), https://twitter.com/IlhanMN/status/‌1619156319923212288 [https://perma.cc/6EQ7-75VM] (“End Qualified Immunity!”). ↑
  5.  See, e.g., Carlisle, supra note 2; Joanna C. Schwartz, Suing Police for Abuse Is Nearly Impossible. The Supreme Court Can Fix That., Wash. Post (June 3, 2020, 2:17 PM), https://www.washingtonpost.com/outlook/2020/06/03/police-abuse-misconduct-supreme-co‌urt-immunity/ [https://perma.cc/TA4E-VN5H]. ↑
  6.  Harlow v. Fitzgerald, 457 U.S. 800, 813 (1982). ↑
  7.  See Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2, 60–64 (2017) [hereinafter Schwartz, How Qualified Immunity Fails] (finding, based on a review of 1,183 police misconduct cases, that qualified immunity leads to the dismissal of less than 4% of civil rights cases, undermining the role of qualified immunity as a protection against the burdens of discovery and trial, and may actually increase litigation costs); Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 938–43 (2014) [hereinafter Schwartz, Police Indemnification] (showing that officers virtually never contribute to settlements and judgments against them, limiting the need for qualified immunity to protect officers from financial liability). ↑
  8.  For a few exceptions, see Mark C. Niles, Here’s a More Important Reform than Ending Qualified Immunity, LawFare (May 18, 2021, 2:13 PM), https://www.lawfareblog.com/heres-more-important-reform-ending-qualified-immunity [https://perma.cc/84VD-Z84Y]; Orion de Nevers, A Dubious Legal Doctrine Protects Cities from Lawsuits over Police Brutality, Slate (June 2, 2020, 2:16 PM), https://slate.com/news-and-politics/2020/06/monell-supreme-court-qualified-immunity.html [https://perma.cc/PM6B-GM3B]. Municipal liability has been a more sustained focus of study and criticism among scholars and advocates. For examples of this research and commentary, see infra Section I.C. ↑
  9.  436 U.S. 658, 663 (1978). ↑
  10.  Id. at 691–95. ↑
  11.  Id. at 694 (“[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.”). ↑
  12.  These critiques, along with an overview of the history of Monell doctrine and its contours, are outlined in Part I. ↑
  13.  See infra note 89 and accompanying text. ↑
  14.  Karen M. Blum, Section 1983 Litigation: The Maze, the Mud, and the Madness, 23 Wm. & Mary Bill Rts. J. 913, 914 (2015); see also infra notes 90–91 and accompanying text (describing critiques of Monell doctrine’s complexity). ↑
  15.  Brian J. Serr, Turning Section 1983’s Protection of Civil Rights into an Attractive Nuisance: Extra-Textual Barriers to Municipal Liability Under Monell, 35 Ga. L. Rev. 881, 883 (2001); see also infra notes 92–96 and accompanying text (describing the prevailing view that it is nearly impossible for plaintiffs to prevail on Monell claims). ↑
  16.  See generally Alexander A. Reinert, Does Qualified Immunity Matter?, 8 U. St. Thomas L.J. 477 (2011) (presenting the results of a study examining how qualified immunity influences attorneys’ decisions about whether to file Bivens claims against federal officials); Joanna C. Schwartz, Qualified Immunity’s Selection Effects, 114 Nw. U. L. Rev. 1101 (2020) (presenting the results of a study examining how qualified immunity influences attorneys’ decisions about whether to file § 1983 claims against law enforcement defendants). ↑
  17.  See generally Schwartz, How Qualified Immunity Fails, supra note 7 (reporting these findings). ↑
  18.  See Alexander A. Reinert, Qualified Immunity at Trial, 93 Notre Dame L. Rev. 2065, 2068 (2018) (finding that “juries are rarely instructed on qualified immunity, nor are they routinely asked to resolve disputed factual questions that might bear on application of the defense,” but that “when juries are instructed on qualified immunity, plaintiffs are much less likely to prevail at trial”). ↑
  19.  See generally Aaron L. Nielson & Christopher J. Walker, Strategic Immunity, 66 Emory L.J. 55 (2016) (measuring variation among circuit judges in their assessment of qualified immunity appeals); Alexander A. Reinert, Qualified Immunity on Appeal: An Empirical Assessment (Cardozo L. Sch. Fac. Rsch. Paper No. 634, 2021), https://ssrn.com/abstract‌=3798024 [https://perma.cc/WJR2-KWVZ] (finding that appellate courts reverse decisions denying qualified immunity far more often than they reverse decisions granting qualified immunity). ↑
  20.  For important research about municipal liability claims that is a clear exception to this general observation, see Nancy Leong, Municipal Failures, 108 Cornell L. Rev. 345, 380 (2023) [hereinafter Leong, Municipal Failures] (examining the success of failure-to-supervise claims on appeal and arguing that such claims are often overlooked by attorneys but successful in court); Nancy Leong, Civil Rights Liability for Bad Hiring 1, 46–49 (Aug. 8, 2023) (unpublished manuscript) (on file with author) (examining the difficulty of proving failure-to-screen claims). See generally Nancy Leong, Katelyn Elrod & Matthew Nilsen, Pleading Failures in Monell Litigation, Emory L.J. (forthcoming 2024), https://papers.ssrn.com/sol3/‌papers.cfm?abstract_id=4378738 [https://perma.cc/MK7R-PZAX] (examining widespread deficiencies in complaints’ Monell allegations). ↑
  21.  See generally Schwartz, How Qualified Immunity Fails, supra note 7 (finding that fewer than 4% of the police misconduct cases filed were dismissed on qualified immunity grounds, offering possible explanations for these findings, and considering their implications for qualified immunity doctrine’s goals). ↑
  22.  See id. at 9–11; see also Joanna C. Schwartz, After Qualified Immunity, 120 Colum. L. Rev. 309, 316–17 (2020) [hereinafter Schwartz, After Qualified Immunity] (offering several predictions about how constitutional litigation would function in a world without qualified immunity). ↑
  23.  See Schwartz, How Qualified Immunity Fails, supra note 7, at 50–51 (arguing that qualified immunity increases the costs and time necessary to litigate civil rights cases, and may discourage attorneys from accepting civil rights cases); Schwartz, After Qualified Immunity, supra note 22, at 338–51 (same). ↑
  24.  See Schwartz, How Qualified Immunity Fails, supra note 7, at 48–49 (describing these findings). ↑
  25.  I outline these findings in Part II. ↑
  26.  I describe these possible explanations for my findings in Part III. ↑
  27.  See infra notes 121–26 (outlining findings in the dataset); infra notes 153–57 and accompanying text (presenting the plausibility standard theory). ↑
  28.  See Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 411 (1997); City of Canton v. Harris, 489 U.S. 378, 388–89 (1989). ↑
  29.  See, e.g., Michael Avery, David Rudovsky, Karen M. Blum & Jennifer Laurin, Police Misconduct Law and Litigation § 4:15 (3d ed. 2022) (“Despite the resolution of several principal questions in this area by the Supreme Court, one should still expect both factual and legal issues to be hotly contested where municipal liability claims are made.”); see also infra notes 199–201 and accompanying text (describing intra-circuit disagreement about how to apply Iqbal’s “plausibility” pleading standard to Monell claims). ↑
  30.  I set out these challenges in Part IV. ↑
  31.  See infra note 205 and accompanying text. ↑
  32.  See generally Schwartz, Police Indemnification, supra note 7, at 890 (“Between 2006 and 2011, in forty-four of the country’s largest jurisdictions, officers financially contributed to settlements and judgments in just .41% of the approximately 9225 civil rights damages actions resolved in plaintiffs’ favor, and their contributions amounted to just .02% of the over $730 million spent by cities, counties, and states in these cases.”). ↑
  33.  See Monroe v. Pape, 365 U.S. 167, 171 (1961) (describing the historical context of Section 1983). ↑
  34.  These proposals are described in further detail in Part V. ↑
  35.  See, e.g., Kindy, supra note 1 (“[State legislative efforts to limit qualified immunity] failed amid multifaceted lobbying campaigns by police officers and their unions targeting legislators, many of whom feared public backlash if the dire predictions by police came true. Officers said they would go bankrupt and lose their homes. They said their colleagues would leave the profession in droves.”). ↑
  36.  For bills introduced by Congress and state legislatures, and enacted in New Mexico, that would make local governments vicariously liable for constitutional violations by their officers, see infra notes 261–64 and accompanying text. ↑

  37.  See Billy Binion, Tim Scott Is Proposing a Major Reform to Qualified Immunity, Reason (Apr. 22, 2021, 12:24 PM), https://reason.com/2021/04/22/tim-scott-is-proposing-a-major-reform-to-qualified-immunity/ [https://perma.cc/Q2QA-D6ZE] (describing Senator Scott’s proposal to create vicarious liability during police reform legislation negotiations after George Floyd’s death); Janice Hisle, In Wake of Tyre Nichols’s Death, Sen. Lindsey Graham Suggests Policing Reform Compromise, Epoch Times (Jan. 31, 2023), https://www.theepochtimes.‌com/in-wake-of-tyre-nichols-death-sen-lindsey-graham-suggests-policing-reform-compromi‌se_5020259.html [https://perma.cc/5ZW8-LDEM] (describing Senator Graham’s suggestion that police departments be held liable following the killing of Tyre Nichols). For articles describing Senator Scott’s and Senator Graham’s opposition to qualified immunity reform, see Sahil Kapur & Scott Wong, Senators Aim to Revive Police Reform Talks but Face Major Hurdles, NBC News (Jan. 30, 2023, 8:58 PM), https://www.nbcnews.com/politics/congress/‌senators-aim-revive-police-reform-talks-face-major-hurdles-rcna68171 [https://perma.cc/R5‌ZQ-RHET] (“I think qualified immunity should stay in place for individual officers, but I’ve always been of the view that departments need to be held accountable.” (quoting Senator Graham)); Melissa Quinn, Tim Scott Says Ending Qualified Immunity Is “Poison Pill” in Police Reform Bill, CBS News (June 14, 2020, 9:48 AM), https://www.cbsnews.com/news/‌tim-scott-police-reform-bill-qualified-immunity-face-the-nation/ [https://perma.cc/L9JA-7W‌DN] (“From the Republican perspective, and the president has sent a signal that qualified immunity is off the table. They see that as a poison pill on our side.” (quoting Senator Scott)). ↑

Noncitizens, Mental Health, and Immigration Adjudication

When a noncitizen commits a crime in the United States, they become vulnerable to the possibility of the government instigating removal proceedings against them. According to the Immigration and Nationality Act, the noncitizen can argue in their defense that the crime they committed was not particularly serious. In this “particularly serious crime” determination, immigration judges are allowed to consider a variety of factors to determine the danger of the noncitizen to the community of the United States. However, prior to May of 2022, immigration judges were categorically barred from considering mental health evidence in their analysis. In Matter of B-Z-R-, this changed. The new ruling by Attorney General Merrick Garland presents itself as a potential sea change in the consideration of mental health in immigration adjudications, ridding the complete bar on mental health evidence in deportation relief proceedings. This Essay argues, however, that the full effects of the ruling will only be realized if more guidance and resources are provided to immigration judges. The Board of Immigration Appeals should set clear guidelines pertaining to the consideration of mental health evidence, and the Executive Office for Immigration Review should provide funding for forensic mental health evaluations and psychiatric support in removal proceedings. The three proposed guidelines in this Essay will ensure that the mental health of noncitizens is being adequately and fairly considered by judges when respondents are seeking relief from deportation.

Introduction

Refugees are at a higher risk of developing mental health symptoms or already having undiagnosed mental health disorders. The American Psychological Association has pointed to factors—like migration-related stress, trauma suffered in their countries of origin, language barriers, fear of deportation and family separation, rising detention rates, barriers to healthcare access, financial instability, and a lack of work opportunities and education—that make it more likely for immigrants to suffer from a mental illness.1 1.See Virginia Barber-Rioja & Alexandra Garcia-Mansilla, Special Considerations When Conducting Forensic Psychological Evaluations for Immigration Court, 75 J. Clinical Psych. 2049, 2051 (2019) (canvassing the various circumstances resulting in greater mental health risks for immigrants).Show More These factors are linked to post-traumatic stress disorder, depression, anxiety, and emotional distress for migrants.2 2.See Irina Verhülsdonk, Mona Shahab & Marc Molendijk, Prevalence of Psychiatric Disorders Among Refugees and Migrants in Immigration Detention: Systematic Review with Meta-Analysis, 7 BJPsych Open 1, 1, 5 (2021) (reporting that among adult migrants, prevalence rates were 68% for depression, 54% for anxiety, and 42% for post-traumatic stress disorder).Show More The immigration system in our country addresses some of these factors while noncitizens are pushed through the system, such as providing procedural safeguards when respondents are deemed incompetent or providing mental health services while a noncitizen is in detention.3 3.See Matter of M-J-K-, 26 I. & N. Dec. 773, 773 (B.I.A. 2016); ICE Health Service Corps, U.S. Immigr. & Customs Enf’t (June 9, 2023), https://www.ice.gov/detain/ice-health-service-corps [https://perma.cc/2SJ3-MLJB].Show More But should the immigration courts be considering these factors when deciding whether to deport noncitizens with mental health disorders that arise from prior to the immigration process?

On May 9, 2022, Attorney General Merrick Garland decided “yes” in the context of a noncitizen having committed a crime leading to their deportation, resulting in the overruling of Matter of G-G-S-.4 4.Matter of B-Z-R-, 28 I. & N. Dec. 563, 563, 567 (A.G. 2022) (overruling the Board of Immigration Appeals’ holding in Matter of G-G-S-, 26 I. & N. Dec. 339 (B.I.A. 2014), that adjudicators may not consider the mental health of a respondent in determining whether a respondent was convicted of a particularly serious crime).Show More Immigration judges may now consider a respondent’s mental health in determining whether an individual, “having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.”5 5.Id. at 563 (quoting 8 U.S.C. § 1158(b)(2)(A)(ii)).Show More If so, withholding of removal relief will be denied, and the respondent will be removed to their country of origin.6 6.8 U.S.C. § 1158(c)(2)–(3).Show More

This Essay argues that the new ruling by the Attorney General in Matter of B-Z-R- has presented itself as a potential sea change in the consideration of mental health in immigration adjudications, but the full effects of the ruling will only be realized if clear operative guidelines and resources are provided to immigration judges. For noncitizens seeking deportation relief, this decision presents a pivotal opportunity to explain why their past criminal conduct does not make them a danger to the community of the United States at present. For immigration judges, this decision provides just another factor of many that can be considered in the deportation determination. However, with a backlog of cases,7 7.Holly Straut-Eppsteiner, Cong. Rsch. Serv., R47077, U.S. Immigration Courts and the Pending Cases Backlog 1, 31 (2022) (noting that at the end of the first quarter of fiscal year (“FY”) 2022, the backlog reached an all-time high of 1.5 million cases, with 578 immigration judges on staff to adjudicate them).Show More a lack of expertise about mental health,8 8.See Amelia Wilson, Franco I Loved: Reconciling the Two Halves of the Nation’s Only Government-Funded Public Defender Program for Immigrants, 97 Wash. L. Rev. Online 21, 48–49 (2022) (discussing challenges in training immigration judges to evaluate mental health concerns).Show More and an insufficient amount of resources and guidance to aid in their determination,9 9.See id. at 50 (discussing shortfalls in funding and immigration judge training).Show More it is unlikely immigration judges will be motivated to adequately and fairly consider the noncitizen’s mental health at the time of the crime.

Noncitizens with mental illnesses are left vulnerable when navigating the immigration court system given the stigmatization and lack of understanding by those without expertise in mental health.10 10.Ayala Danzig & Marina Nakic, Appellate Court Clarifies That Immigration Judges Cannot Disregard Mental Health Professional Guidelines, 50 J. Am. Acad. Psychiatry & L. 158, 161 (2022).Show More To better ensure the consideration of mental health in the particularly serious crime analysis, the Board of Immigration Appeals (“BIA”) should set clear operative guidelines pertaining to the consideration of mental health evidence, and the Executive Office for Immigration Review should provide funding for forensic mental health evaluations and psychiatric support in removal proceedings.

Part I explains the “particularly serious crime” analysis in Section 241(b)(3) of the Immigration and Nationality Act. Part II discusses current issues that plague immigration adjudication when it comes to the consideration of mental health. Part III outlines three concrete guidelines the Board of Immigration Appeals should provide for immigration judges considering mental health in the particularly serious crime determination.

  1.  See Virginia Barber-Rioja & Alexandra Garcia-Mansilla, Special Considerations When Conducting Forensic Psychological Evaluations for Immigration Court, 75 J. Clinical Psych. 2049, 2051 (2019) (canvassing the various circumstances resulting in greater mental health risks for immigrants). ↑
  2.  See Irina Verhülsdonk, Mona Shahab & Marc Molendijk, Prevalence of Psychiatric Disorders Among Refugees and Migrants in Immigration Detention: Systematic Review with Meta-Analysis, 7 BJPsych Open 1, 1, 5 (2021) (reporting that among adult migrants, prevalence rates were 68% for depression, 54% for anxiety, and 42% for post-traumatic stress disorder). ↑
  3.  See Matter of M-J-K-, 26 I. & N. Dec. 773, 773 (B.I.A. 2016); ICE Health Service Corps, U.S. Immigr. & Customs Enf’t (June 9, 2023), https://www.ice.gov/detain/ice-health-service-corps [https://perma.cc/2SJ3-MLJB]. ↑
  4.  Matter of B-Z-R–, 28 I. & N. Dec. 563, 563, 567 (A.G. 2022) (overruling the Board of Immigration Appeals’ holding in Matter of G-G-S-, 26 I. & N. Dec. 339 (B.I.A. 2014), that adjudicators may not consider the mental health of a respondent in determining whether a respondent was convicted of a particularly serious crime). ↑
  5.  Id. at 563 (quoting 8 U.S.C. § 1158(b)(2)(A)(ii)). ↑
  6.  8 U.S.C. § 1158(c)(2)–(3). ↑
  7.  Holly Straut-Eppsteiner, Cong. Rsch. Serv., R47077, U.S. Immigration Courts and the Pending Cases Backlog 1, 31 (2022) (noting that at the end of the first quarter of fiscal year (“FY”) 2022, the backlog reached an all-time high of 1.5 million cases, with 578 immigration judges on staff to adjudicate them). ↑
  8.  See Amelia Wilson, Franco I Loved: Reconciling the Two Halves of the Nation’s Only Government-Funded Public Defender Program for Immigrants, 97 Wash. L. Rev. Online 21, 48–49 (2022) (discussing challenges in training immigration judges to evaluate mental health concerns). ↑
  9.  See id. at 50 (discussing shortfalls in funding and immigration judge training). ↑

  10.  Ayala Danzig & Marina Nakic, Appellate Court Clarifies That Immigration Judges Cannot Disregard Mental Health Professional Guidelines, 50 J. Am. Acad. Psychiatry & L. 158, 161 (2022). ↑

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