Reducing police misconduct requires substantial institutional reform in our
nation’s police departments. Yet traditional legal means for deterring
misconduct, such as civil suits under § 1983 and the exclusionary rule, have
proved inadequate to force departmental change. 42 U.S.C. § 14141 was passed
in 1994 to allow the Justice Department to sue police departments to force
institutional reform. Scholars initially hailed § 14141 as a powerful tool for
reducing unconstitutional police abuse. The Justice Department, however, has
sued few police departments. This Article contends that § 14141’s greatest
potential has been overlooked. Limited resources will always mean that § 14141
can be used to force reform on only a limited number of police departments. But
§ 14141 could also be used to induce reform in many more. This goal requires a
§ 14141 litigation strategy designed to motivate proactive reform in more
departments than the Justice Department can sue. The key components of this
strategy are a “worst-first” litigation policy that prioritizes suits against police
departments with the worst indicia of misconduct, and a policy that grants a
“safe harbor” from suit for police departments that voluntarily adopt best
practice reforms. This Article also explains why this proactive § 14141
enforcement strategy would be more efficient at reducing police misconduct than
current enforcement policies, proposals to reform § 14141 by adding private
plaintiffs, and alternative mechanisms by which the federal government could
regulate police department reform.