Damages Archives – Southern California Law Review

Transforming Special Education Litigation: The Milestone of Perez v. Sturgis Public Schools

April 2025April 2025Isabelle Yuan*

In March 2023, the Supreme Court issued a landmark decision in Perez v. Sturgis Public Schools, which held that individuals seeking compensatory damages under federal anti-discrimination laws, like the Americans with Disabilities Act, no longer need to satisfy the administrative exhaustion requirement in the Individuals with Disabilities Act (“IDEA”). Under IDEA, all students with disabilities are entitled to a free appropriate public education, which means that students with disabilities are entitled to individualized education services that meet their needs. In Perez, the plaintiff, Miguel Luna Perez, was a deaf student who alleged that the Sturgis Public Schools discriminated against him by not providing proper accommodations, such as a qualified sign language interpreter in his classes. The district court and the Sixth Circuit dismissed the plaintiff’s claims because of an IDEA provision that requires the plaintiff exhaust all administrative procedures before seeking relief in court. The Supreme Court reversed the Sixth Circuit decision, reasoning that the exhaustion requirement did not apply to Perez as he sought compensatory damages, which are unavailable under IDEA. This ruling means that families can now directly hold schools financially accountable for IDEA violations. This Note discusses Perez’s profound impact on the special education landscape. The greater accessibility for families to litigate will ideally lead to greater accountability and IDEA compliance as schools strategize to avoid litigation and paying costly compensatory damages. Although this decision is a victory for students with disabilities, a major downside of Perez is that paying compensatory damages increases schools’ financial strain and may hinder their abilities to address systemic issues in their special education framework. To ensure that school districts can properly address structural issues and adequately support students with disabilities post-Perez, this Note argues for clearer IDEA guidelines and robust monitoring systems. There are many uncertainties that follow in the wake of Perez, but the decision has the potential to encourage much-needed progress in special education services nationwide.

INTRODUCTION

In March 2023, the United States Supreme Court delivered a landmark decision for students with disabilities. The Court unanimously ruled in Perez v. Sturgis Public Schools that a student with a disability is not required to exhaust the administrative due process procedures under the Individuals with Disabilities Education Act (“IDEA”) before seeking monetary damages under the Americans with Disabilities Act of 1990 (“ADA”) or other federal antidiscrimination laws.¹ Under IDEA, students with disabilities are required to receive a “free and appropriate public education,” but money damages are not available as relief.²

IDEA mandates that students with disabilities receive a free appropriate public education (“FAPE”), which includes providing special education and related services from preschool through secondary school that meet state educational agency standards and conform with the student’s individualized education program (“IEP”).³ An IEP is a written statement developed by a local educational agency, like a school district. It is a collaboration between a child’s parents and school personnel to identify a student’s needs and to develop a plan to achieve educational goals.⁴ Parents are intended to play “a significant role” in the IEP process.⁵ IEPs also prescribe the types of supplementary services the student will receive, along with an explanation of whether the child is able to participate in regular classes with nondisabled children.⁶

Three main federal laws exist to protect children with disabilities: IDEA,⁷ the ADA,⁸ and section 504 of the Rehabilitation Act of 1973 (“section 504”).⁹ Both IDEA and section 504 confer a right to FAPE, though the two have distinct conceptions of the meaning.¹⁰ Though the ADA does not contain a FAPE obligation, its regulations are mandated to be consistent with all section 504 regulations, so it does not undermine section 504’s FAPE obligation.¹¹ The ADA was enacted twenty-five years after IDEA to “provide a clear and comprehensive national mandate” to address pervasive discrimination against individuals with disabilities in areas such as “employment, housing, public accommodations, [and] education . . . .”¹² The ADA mandates that employers and public entities make reasonable modifications to their policies or facilities to accommodate individuals with disabilities. Section 504 is an antidiscrimination statute that also protects individuals with disabilities from being denied benefits or excluded from participation in any program receiving federal funding, including public schools.¹³

IDEA, the ADA, and section 504 all define “disability” differently, although there are overlaps among them. In this Note, “students with disabilities” refers to students who qualify under IDEA. IDEA defines a student with a disability as a child, aged between three to twenty-one, “with intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance, . . . orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities” who thereby “needs special education and related services.”¹⁴ The ADA’s definition for “disability” is more stringent, as an individual must have “a physical or mental impairment that substantially limits one or more major life activities” and a record of the impairment.¹⁵ Section 504 incorporates part of the ADA definition, but requires that an individual with a disability have a physical or mental impairment that “results in a substantial impediment to employment” and can benefit from vocational rehabilitation services.¹⁶ The ADA and section 504 operate similarly to prohibit discrimination on the basis of disability in programs that receive federal funding.¹⁷ So, although IDEA and ADA both provide relief for individuals with disabilities, they function differently; the ADA addresses broader discrimination in major areas of public life like employment and public accommodations, while IDEA is focused only on special education services in public education.¹⁸ Importantly, the different “disability” definitions mean that a person who receives special education services under IDEA does not necessarily have a disability recognized under the ADA and section 504.¹⁹

In Perez v. Sturgis Public Schools, Miguel Luna Perez, a deaf student in Michigan, faced significant challenges in his education. Perez attended schools in the Sturgis Public School District (“SPSD”) and was entitled to a sign language interpreter during class.²⁰ Although the school provided him with a classroom aide, Perez’s assigned aide was unqualified to teach sign language.²¹ As Perez neared high school graduation, the school informed his parents that he did not fulfill his diploma requirements and would not graduate, which prompted Perez to file a complaint with the Michigan Department of Education.²² Perez alleged that SPSD denied him an adequate education in violation of IDEA, the ADA, section 504, and two other disability laws.²³ SPSD and Perez agreed to a settlement that included post-secondary compensatory education and sign language instruction for Perez.²⁴ Perez subsequently sued SPSD in federal district court.²⁵ The Western District of Michigan dismissed Perez’s ADA claim, citing his failure to exhaust administrative proceedings because he had settled his IDEA claim—a decision the Sixth Circuit affirmed.²⁶

The central question before the Supreme Court in this case was whether IDEA and the ADA required a student to exhaust administrative proceedings against the school district, even when such proceedings would not provide the relief sought.²⁷ The Court’s unanimous opinion held that an ADA lawsuit seeking compensatory damages could proceed without exhausting the administrative processes of IDEA because the remedy sought under the ADA was not one provided by IDEA.²⁸ Perez is important because it changes the landscape of special education law, opening the door for families to seek compensatory damages without undergoing an extensive exhaustion process. Rather than being forced to participate in due process hearings, families can readily hold school districts financially accountable for IDEA noncompliance.

This ruling will have significant implications for the rights of children with disabilities and how school districts handle future litigation. One implication is that the process for seeking compensatory damages from school districts became more streamlined, since families may bypass IDEA’s exhaustion requirement. Previously, the burden of exhausting IDEA’s administrative procedures was a deterrent for families seeking remedies under federal statutes like the ADA and section 504. Another implication is that the rights of students with disabilities are enhanced, as families have more leverage when negotiating settlements with school districts. Families may feel more empowered by the possibility of receiving monetary damages that will offset their litigation costs and propel school districts to address their inadequate special education programs. The availability of compensatory damages will likely lead to an increase in the number of cases brought against school districts.

However, there may be unforeseen negative consequences of increased family advocacy: prolonged legal battles and compensatory damage payouts may strain school districts’ resources and divert attention away from students. School districts that are already struggling financially might experience a further breakdown in their special education services as reduced funding and resources prevent them from addressing the educational needs of students. It may be that some families will receive rightful compensation while other students with disabilities struggle against systemic issues in the administration of special education programs exacerbated by the effects of the Perez decision.

This Note proposes that the Supreme Court’s decision in Perez will have far-reaching consequences for the families of students with disabilities and school districts’ approaches to litigation, as well as policy implications for educational agencies in the implementation of special education services under IDEA. Part I of this Note offers an overview of IDEA’s history, the statute’s requirements and procedural framework, and an explanation of IDEA’s exhaustion requirement that is central to the discussion in Perez. Also, Part I offers a brief explanation of the ADA and section 504 in relation to IDEA and the standards for receiving compensatory damages through these laws. Part II discusses a few important Supreme Court cases that litigated standards and definitions under IDEA. To fully understand the importance of the Perez decision, it is important to contextualize Perez alongside other IDEA cases heard by the Supreme Court. Part III explores the background and discussion of Perez and its implications for future special education litigation. Finally, Part IV explores potential consequences of the Perez decision and offers policy recommendations on how educational agencies can better meet IDEA requirements and address the needs of students with disabilities.

I. FOUNDATIONS OF SPECIAL EDUCATION LAW

This Part provides background information about the creation of IDEA and a detailed explanation of the statute’s intentions, procedural framework, and enforcement through state educational agencies. This Part also briefly explains IDEA’s exhaustion requirement, which is central to Perez. The final Section of this Part describes the process and standards for a party bringing a discrimination claim for money damages under the ADA and section 504, since compensatory damages are unavailable under IDEA.

A. History of IDEA

Beginning with the Civil Rights Movement, advocates for students with disabilities argued that the exclusion of students with disabilities from schools was a denial of equal educational opportunities analogous to racial segregation in schools.²⁹ Advocacy organizations and parents sued states, alleging that inappropriate educational services violated the Constitution.³⁰ Congress responded by enacting the Elementary and Secondary Education Act of 1965, in which the federal government provided funding to educate students below the poverty line and improve the education of students with disabilities in public schools.³¹ In 1970, the Education of the Handicapped Act (“EHA”) was passed and provided grant funding for higher education institutions to develop special education teacher training programs.³² Two 1972 cases, Pennsylvania Ass’n for Retarded Children (PARC) v. Pennsylvania and Mills v. District of Columbia, are considered to be the most notable cases in special education and foundational to the ideas in IDEA.³³ In PARC, the district court approved an amended consent agreement that obligated the state of Pennsylvania to place every child with a disability “in a free, public program of education and training appropriate to the child’s capacity.”³⁴ In Mills, the district court held that the District of Columbia public school system must utilize their financial resources so “that no child is entirely excluded from a publicly supported education consistent with [their] needs and ability to benefit therefrom,” especially for students with disabilities.³⁵ Though PARC and Mills are most frequently referenced, there were more than thirty federal cases during this period in which courts upheld the same principles outlined in PARC and Mills.³⁶

In the early 1970s, only 3.9 million of the 8 million children with documented disabilities in the United States had access to an adequate education.³⁷ In 1975, President Gerald Ford signed into law an amendment to the EHA, the Education for All Handicapped Children Act (“EAHCA”).³⁸ The EAHCA’s purpose was to ensure that students with disabilities received a FAPE, to protect the rights of students and parents, and to assist states and school districts in providing services.³⁹ The EAHCA’s enactment was significant because it marked the first time that a FAPE was memorialized in the law.⁴⁰

In 1990, amendments were passed to the EAHCA, and the law was renamed as the Individuals with Disabilities Education Act, as it is known today.⁴¹ IDEA’s purpose is to ensure that every child with a disability received a FAPE.⁴² Importantly, IDEA provides funding to states and school districts that comply with its mandates.⁴³ The combination of IDEA’s function and purpose make it both an educational grant program and a civil rights statute, rendering it a unique piece of legislation. In 1997, amendments restructured IDEA into four parts: (1) general provisions; (2) assistance for all children with disabilities; (3) infants and toddlers with disabilities; and (4) national activities to improve the education of students with disabilities.⁴⁴

B. Inside IDEA

1. IDEA Requirements and Procedural Framework

IDEA contains an administrative framework that was intended to ensure that parents of students with disabilities have enforceable opportunities to participate in all aspects of their children’s education.⁴⁵ The Supreme Court has made it clear that IDEA guarantees a substantively adequate program to all eligible students with disabilities, which is satisfied when a child’s IEP sets out an educational program that reasonably allows the child to receive educational benefits and advance from grade to grade.⁴⁶ IDEA is centered around the provision of a FAPE, which must be made in conformity with the IEP.⁴⁷ IDEA does this by guaranteeing a FAPE in the least restrictive environment (“LRE”) for all students with disabilities and through the creation and implementation of IEPs.⁴⁸ A FAPE in conformity with an IEP must be specially designed to meet the unique needs of a child with a disability and include any related services that would benefit the child.⁴⁹ All states covered by IDEA must provide a child with a disability with special education and related services as prescribed by his IEP.⁵⁰ IDEA defines “special education” as specially designed instruction to meet the unique needs of a child with a disability, and “related services” as the support services required to assist a child to benefit from that instruction.⁵¹ These services can include speech-language pathology, interpreters, occupational therapy, and counseling services.⁵²

A FAPE must “have been provided at public expense, under public supervision and direction, and without charge” at an appropriate level of education that meets state standards.⁵³ The LRE means that, to the “maximum extent appropriate,” children with disabilities are to be educated with children who are not disabled in a regular classroom setting, and that removal of children with disabilities from the regular classroom environment occurs only in cases of severe disability or when supplementary services “cannot be achieved satisfactorily.”⁵⁴

IDEA requires school districts to develop an IEP for each child with a disability.⁵⁵ Parental concerns regarding their child’s education must be considered by the team.⁵⁶ States are required to oversee this process and ensure that parents of a child with a disability are involved in the IEP discussion and any decisions about the educational placement of their child.⁵⁷ A student’s IEP must state the special education and related services that will be provided so that the child may advance toward achieving the annual goals set in their IEP.⁵⁸ An IEP must also state the child’s current levels of academic achievement and functional performance, while explaining how the child’s progress toward achieving their annual goals will be measured.⁵⁹ Based on these goals, an IEP will prescribe the special education and related services that will be provided.⁶⁰

IDEA has a comprehensive enforcement scheme that requires states to establish and maintain procedural safeguards to ensure that students with disabilities are receiving their basic right to education—a FAPE.⁶¹ State and local compliance with IDEA is monitored by federal review.⁶² Procedural safeguards are in place to “guarantee parents both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decisions they think inappropriate.”⁶³ For example, states are mandated to provide an opportunity for parents to examine all relevant school records.⁶⁴ Whenever parents have complaints about the adequacy of their child’s education, like in the development of their IEP, the involved state must provide an opportunity for the party to present a complaint “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.”⁶⁵

Once a party presents a complaint, a review process begins, in which the parents of the child with a disability discuss their complaint with the local educational agency in a preliminary meeting and the parties work to reach a resolution.⁶⁶ If the agency fails to resolve the complaint to the parent’s satisfaction within thirty days, the party may request an impartial due process hearing, which can be conducted by either the local educational agency or the state educational agency.⁶⁷ A due process hearing is overseen by an impartial hearing officer who considers sworn testimony and evidence to make a decision.⁶⁸ The hearing officer’s decision must be made on substantive grounds based on a determination of whether the child received a FAPE.⁶⁹ For a hearing officer to be “impartial,” they must not be an employee of the state educational agency or the child’s school district.⁷⁰ The officer may find a violation of a FAPE only if the procedural inadequacies “impeded the child’s right to a free appropriate public education,” “significantly impeded the parents’ opportunity to participate in the decisionmaking process,” or deprived the child of educational benefits.⁷¹ Notably, decisions made in due process hearings are binding on both parties, though parties may appeal a decision of the local educational agency to the state educational agency.⁷² Once the state educational agency reaches a decision, the aggrieved party may bring an action in state or federal district court.⁷³ The court will then review the administrative record, with supplementary evidence submitted at the request of a party, before granting “such relief as the court determines is appropriate” to the prevailing party.⁷⁴

IDEA does not grant compensatory damages, but it does provide for discretionary attorneys’ fees.⁷⁵ Most IDEA remedies have been equitable remedies, such as tuition reimbursement or injunctive relief.⁷⁶ Courts have also been given broad discretion in providing equitable relief that it finds appropriate and consistent with the purposes of IDEA, ADA, and section 504.⁷⁷ A court or hearing officer may require an educational agency to reimburse the parents of a child with a disability for the cost of private school enrollment if the school district cannot adequately provide a FAPE.⁷⁸

Once a state accepts IDEA’s financial assistance, an eligible child under the statute has a substantive right to a FAPE.⁷⁹ IDEA has six categories of mandates that states must meet to receive funding: (1) educational agencies must provide services to all qualified students with disabilities, regardless of the severity of their disabilities; (2) educational agencies must evaluate each student with a disability that requests a FAPE; (3) all students with disabilities aged between three and twenty-one who need special education and related services must receive a FAPE; (4) students with disabilities must be educated in the general classroom or the LRE as much as possible; (5) several procedural safeguards must be followed to guarantee a FAPE; and (6) parents must be involved at every stage of the process.⁸⁰

2. State Responsibilities Under IDEA

In the United States, Congress does not have constitutional authority over education, so it exerts pressure on states using its spending powers,⁸¹ particularly by offering federal funding to state and local agencies that meet IDEA conditions.⁸² This funding allows the federal government to oversee state educational authorities, such as state departments of education. State educational authorities then oversee local educational authorities, which are responsible for the implementation of IDEA mandates in schools.⁸³ But IDEA serves only as a floor for student rights, and many states have established their own statutes to further expand upon federal mandates in the special education context. These state laws play a critical role in shaping the law for students with disabilities, so the landscape of disability-rights law can vary significantly from one jurisdiction to another. For example, what a student must do to exhaust IDEA administrative requirements before bringing a lawsuit depends on each state’s rules. IDEA allows states to choose between a one- or two-tiered system for administrative review. In a one-tiered system, a state educational agency decides a student’s case.⁸⁴ In a two-tiered system, a local educational agency decides the case before a party can appeal for an impartial hearing conducted by the state educational agency; all of which must happen before a civil action may be brought in a state or federal district court.⁸⁵

Under IDEA, state and local departments of education receive federal financial assistance if they provide a FAPE for children with disabilities.⁸⁶ A state may provide educational benefits that exceed those required by IDEA, with the state standards being equally enforceable through IDEA.⁸⁷ A state must certify to the Secretary of Education that it has policies and procedures that will meet IDEA’s conditions, especially IDEA’s principal obligation to provide a FAPE to all eligible students with disabilities.⁸⁸ A local educational agency or school district is eligible to receive a share of the state’s federal funding if it has policies and programs that are consistent with the state’s policies.⁸⁹ Thus, a school district’s obligations under IDEA are dependent on the state’s formal procedures and obligations, which must align with IDEA.

3. Section 1415(l): IDEA Exhaustion Requirement

In § 1415(l) of IDEA (“section 1415(l)”), the statute requires that parties first exhaust administrative remedies before filing a complaint in state or federal court regarding the denial of a FAPE.⁹⁰ As the Supreme Court explained in Weinberger v. Salfi,

Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.⁹¹

The exhaustion doctrine is also premised on the idea “that [educational] agencies, not the courts, ought to have primary responsibility for the programs that Congress has charged them to administer.”⁹² Although courts have discretion in their decision to rule on exceptions to the exhaustion requirement, the “[a]pplication of the doctrine to specific cases requires an understanding of its purposes and of the particular administrative scheme involved.”⁹³

In analyzing whether an exception to the rule should be granted, courts previously considered whether the purposes of exhaustion would be served by requiring plaintiffs to exhaust administrative remedies.⁹⁴ Congress’s aim was to allow educational agencies and parents to work together in developing a child’s IEP.⁹⁵ Requiring the exhaustion of administrative processes allows for an exploration of the educational issues at hand, a complete consideration of the factual record, and the opportunity for educational agencies to correct the problems in their special education programs.⁹⁶

There have been exceptions to the exhaustion requirement in certain situations, though the accepted exceptions differ across circuits.⁹⁷ Before the Perez decision, courts recognized that there were instances in which the exhaustion requirement did not further the goals of IDEA and excused exhaustion, but only “in cases of futility and inadequacy.”⁹⁸

C. The ADA and Section 504 of the Rehabilitation Act

The ADA and section 504 of the Rehabilitation Act of 1973 are federal statutes focused on preventing discrimination against individuals with disabilities.⁹⁹ Section 504 applies to all organizations that receive federal funding, which includes public schools.¹⁰⁰ Prior to section 504, neither federal, state, nor local law protected people with disabilities from discrimination in schools.¹⁰¹ The ADA extends to secular private schools that do not receive federal funding.¹⁰² The ADA was enacted twenty-five years after IDEA “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”¹⁰³ The ADA covers a broader range of areas than IDEA since it focuses on all types of discrimination individuals face in areas such as employment, housing, and health services, in addition to education.¹⁰⁴ Title II of the ADA forbids any public entity, including schools, from discriminating based on disability,¹⁰⁵ and section 504 applies the same prohibition to any federally funded program.¹⁰⁶ The Supreme Court has interpreted section 504 as “demanding certain ‘reasonable’ modifications to existing practices in order to ‘accommodate’ persons with disabilities.”¹⁰⁷

Unlike IDEA, both the ADA and section 504 authorize individuals to seek redress for violations of their rights by bringing suits for money damages.¹⁰⁸ The available remedies under section 203 of the ADA are the same remedies available under section 504 of the Rehabilitation Act, which are also the same remedies available under Title VI of the Civil Rights Act of 1964.¹⁰⁹ Based on that statutory language, the Supreme Court has found that “the remedies for violations of § 202 of the ADA and § 504 of the Rehabilitation Act are coextensive with the remedies available in a private cause of action brought under Title VI of the Civil Rights Act of 1964.”¹¹⁰

Although the ADA is intended to protect individuals with disabilities, many people have been refused coverage.¹¹¹ Many courts have ruled that plaintiffs were not covered under the ADA’s definition of “disability,” as they did not fulfill any of the ADA’s three requirements of having “a physical or mental impairment that substantially limits one or more major life activities,” having “a record of such an impairment,” or “being regarded as having such an impairment.”¹¹² The narrow interpretation of the definition has shrunk the number of people in this protected class.¹¹³

The standard for obtaining compensatory damages under the ADA or section 504 is substantial. Different circuits have adopted similar requirements to establish a discrimination case under either the ADA or section 504.¹¹⁴ To establish a disability discrimination claim under the ADA or section 504, a plaintiff must demonstrate that a student is a “qualified individual with a disability”; “was excluded from participation in,” or otherwise discriminated against by “a public entity’s services, programs or activities”; and that exclusion or discrimination was the result of the student’s disability.¹¹⁵ Claims for compensatory damages under the ADA require a finding of intentional discrimination or an intentional denial of benefits, such as deliberate indifference from a school district.¹¹⁶ For example, in the Ninth Circuit, to prevail on a section 504 claim, a plaintiff must establish that (1) they have a disability; (2) they were otherwise qualified to receive a benefit; (3) they were denied the benefit solely because of their disability; and (4) the program receives federal financial assistance.¹¹⁷ To receive compensatory damages, a plaintiff must additionally prove intentional discrimination, such as showing deliberate indifference.¹¹⁸

II. JUDICIAL MILESTONES IN SPECIAL EDUCATION

This Part gives a brief overview of a few important IDEA cases in which the Supreme Court has decided individual disputes between children and their schools. It also aims to contextualize the Supreme Court’s decision in Perez by highlighting the Court’s role in clarifying IDEA provisions and its consistent deference to parents advocating for their children’s educational rights. Finally, this Part explains Fry v. Napoleon Community Schools, which is the last IDEA case the Supreme Court heard before Perez and addresses related questions about IDEA’s exhaustion requirement.

In Board of Education v. Rowley, the Supreme Court interpreted the term “appropriate” in IDEA’s statutory construct pertaining to FAPE.¹¹⁹ The Court rejected lower court decisions that required educational achievement to a child’s “full potential,” instead concluding that one of the main functions of IDEA was to create “access to specialized instruction and related services which are individually designed to provide educational benefit to” a child with disabilities.¹²⁰ The Court interpreted “appropriate” to establish a “basic floor of opportunity” that required school districts to provide disabled children with an “educational benefit.”¹²¹ This case has been extremely important in clarifying the level of service school districts are required to provide to students.

Amy Rowley, a deaf student, attended public school and received services under the then EAHCA.¹²² When Rowley’s parents requested that the school provide her with a sign language interpreter, school officials refused, maintaining that the services she had already received were sufficient for her needs.¹²³ Rowley received speech and language therapy and had an audio amplification system, which the school argued was sufficient due to Rowley’s passing grades.¹²⁴ Rowley’s parents filed an administrative complaint based on the school’s refusal to provide her with a sign language interpreter, which resulted in a favorable decision for the school district. The federal district court then ruled in the parents’ favor, which was affirmed by the Second Circuit.¹²⁵ The school district appealed to the Supreme Court, which discussed two central questions: “What is meant by the [EAHCA’s] requirement of a ‘free appropriate public education’? And what is the role of state and federal courts in exercising the review granted by [EAHCA]?”¹²⁶

The Court’s majority opinion looked at the Congressional intent of the EAHCA, which focused on remedying the exclusion of children with disabilities from normal school environments. Justice Rehnquist wrote that “the intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.”¹²⁷ The Court explained that a school’s obligation was satisfied by providing the basic floor of services rather than the maximum needed for a child to succeed, since that would go farther than what the Court believed Congress intended.¹²⁸ Notably, the Court also declared that a court had the authority to grant whatever relief it deemed appropriate under the EAHCA where a school failed to satisfy procedural obligations, but emphasized that this authority was limited to procedural compliance rather than imposing substantive educational standards.¹²⁹ The Court’s decision in Rowley had practical implications for district courts, as many were guided by the two questions the Rowley Court posited: “First, has the State complied with the procedures set forth in the [EAHCA]? And second, is the individualized educational program developed through the [EAHCA’s] procedures reasonably calculated to enable the child to receive educational benefits?”¹³⁰ Courts have used these two questions to determine whether school districts have done enough for students, and maintain that they may not substitute any preferred policies over the school’s discretion.¹³¹ The Rowley Court also recognized that states have the primary responsibility for developing and executing educational programs and determining educational policies since “courts lack the ‘specialized knowledge and experience’ necessary to resolve ‘persistent and difficult questions of educational policy.’ ”¹³²

In Endrew F. v. Douglas County School District RE-1, the Supreme Court clarified its position on IDEA’s FAPE provision, finding that an IEP must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”¹³³ A child with disabilities should still have the opportunity to be educated in a regular classroom that will “ ‘enable the child to achieve passing marks and advance from grade to grade.’ ”¹³⁴ In Endrew, the parents of a fifth-grade student with autism sought reimbursement of tuition costs for placement in a private school.¹³⁵ His parents were dissatisfied with his progress in public school because his IEP goals carried over year-to-year and he failed to make progress in his learning.¹³⁶ Endrew’s parents filed a complaint with the Colorado Department of Education seeking reimbursement, which required them to demonstrate that the school district had not provided Endrew with a FAPE.¹³⁷ The district court felt that modifications to Endrew’s IEP each year were “sufficient to show a pattern of, at the least, minimal progress.”¹³⁸ The district court explained that minimal progress was all that the Rowley standard required of a school district.¹³⁹ The Tenth Circuit affirmed the lower court’s decision, agreeing that special education services only need to allow a student with disabilities to make “some progress.”¹⁴⁰

The Supreme Court stated that, “To meet its substantive obligation under IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”¹⁴¹ The Court felt that an IEP was designed to create a plan for “pursuing academic and functional advancement,” which connected with IDEA’s purpose to help prevent the exclusion of children with disabilities in classrooms.¹⁴² Thus, a student offered an education that merely allowed some progress “can hardly be said to have been offered an education at all.”¹⁴³ The Court refrained from creating a bright-line test for determining what “appropriate progress” meant, reasoning that it should be determined depending on each unique child.¹⁴⁴

Parents of students with disabilities “often do not feel they are empowered when the [IDEA] system fails them,” as litigation is not an accessible avenue for everyone.¹⁴⁵ In Endrew, Endrew’s parents first paid for private specialized schooling before filing a complaint seeking reimbursement from the state,¹⁴⁶ requiring them to pay for expert witnesses and an attorney.¹⁴⁷ IDEA litigation is a lengthy process with a difficult standard for many families to meet. Endrew had to prove that the school district did not allow him to make appropriate progress on his IEP. To meet that standard, he needed professional experts who could attest to the progress he was capable of making and what services he needed to make that amount of progress beyond what the school district provided. Without the means for litigation costs and private education, Endrew would not have been able to present evidence of his progress. His case illustrates how difficult IDEA due process procedures are for parents who lack the means, agency, or understanding to navigate the process.

In Fry v. Napoleon Community Schools, the Supreme Court clarified the procedure that applies when a plaintiff files a complaint under a statute other than IDEA, finding that IDEA’s exhaustion requirement is “not necessary when the gravamen of the plaintiff’s suit is something other than the denial of IDEA’s core guarantee” of a FAPE.¹⁴⁸ There was confusion in lower courts about how to determine whether a complaint qualified as a claim under IDEA or under the ADA, section 504, or other federal laws.¹⁴⁹ In Fry, the parents of a kindergartener with cerebral palsy sought permission to let their daughter bring her service dog to school.¹⁵⁰ The school district denied the request because she already received similar services and a service dog would be “superfluous.”¹⁵¹ The parents first filed a complaint with the U.S. Department of Education’s Office for Civil Rights, alleging ADA and section 504 violations, which resulted in a favorable decision for the parents.¹⁵² The parents then brought these actions against the school district, seeking monetary and declaratory relief due to the school’s denial of their daughter’s right to equal access.¹⁵³ The district court dismissed their action pursuant to section 1415(l) of IDEA because the parents failed to exhaust their administrative remedies under IDEA.¹⁵⁴ The Sixth Circuit affirmed the district court’s decision because, when the injuries alleged relate to the child’s education and there is a remedy available through IDEA, “waiving the exhaustion requirement would prevent state and local educational agencies from addressing problems they specialize in addressing . . . .”¹⁵⁵

The Supreme Court examined section 1415(l)’s exhaustion requirement, finding that it “hinges on whether a lawsuit seeks relief for the denial of a FAPE.”¹⁵⁶ If a lawsuit alleges a denial of a FAPE, then it cannot circumvent section 1415(l), even if the plaintiff sues under a different federal law.¹⁵⁷ However, the Court did specify that if a lawsuit is brought under a different federal law and “the remedy sought is not for the denial of a FAPE, then exhaustion of IDEA’s procedures is not required.”¹⁵⁸ This is because an administrative hearing under IDEA could not provide any relief, even if the claim originates from the mistreatment of a child with disabilities.¹⁵⁹

While Fry clarified certain aspects of the exhaustion requirement, the issue of monetary damages under IDEA remained unsettled, as circuit courts were divided on whether courts could excuse exhaustion.¹⁶⁰ Congress had crafted IDEA “exhaustion requirement to be flexible so that meritorious cases would get a judicial hearing, [but] many courts have applied the rule rigidly, barring cases even when the plaintiffs present persuasive reasons for excusing exhaustion.”¹⁶¹ Fry left an unresolved issue regarding IDEA’s exhaustion requirement, meaning that the plaintiffs continued to be barred when trying to seek compensatory damages under the ADA or section 504 when they failed to first exhaust their options. Had the Court answered the question then, school district responses likely would have handled IDEA complaints with more care and screened them for potential ADA and section 504 violations.

III. PEREZ V. STURGIS PUBLIC SCHOOLS: A TURNING POINT IN DISABILITY RIGHTS ADVOCACY

Part III delves into Perez, explaining how the petitioner, Miguel Luna Perez, faced educational neglect and misrepresentation from his school district before pursuing an ADA claim for emotional distress. Perez establishes a precedent for families to pursue claims under federal laws like the ADA and section 504 without exhausting IDEA procedures, offering new legal avenues for students with disabilities. This Part argues that this decision will have significant repercussions for special education litigation, as it enhances families’ leverage in legal disputes and places financial strain on school districts’ budgets and abilities to provide special education services.

A. Discussion of Perez v. Sturgis Public Schools

Petitioner Miguel Luna Perez was a deaf student who attended schools in Michigan’s Sturgis Public School District from ages nine to twenty.¹⁶² Perez was an individual who qualified as having a disability under IDEA and the ADA because he had a physical and mental impairment that substantially limited multiple major life activities, like hearing and speaking.¹⁶³ Perez claimed that SPSD was required to provide an aide to translate classroom instruction and that his aides were unqualified sign language interpreters.¹⁶⁴ SPSD made multiple misrepresentations to Perez and his parents, including his academic achievements by inflating his grades, that his aides knew sign language, and that he had access to the same educational services as his peers.¹⁶⁵ Perez claimed that, in March 2016, just months before his high school graduation, SPSD informed him and his parents that he would not receive a high school diploma and instead would receive a “certificate of completion.”¹⁶⁶

This prompted Perez and his family to file an administrative due process claim with the Michigan Department of Education.¹⁶⁷ Perez and SPSD reached a settlement that included payment for additional schooling at the Michigan School for the Deaf, sign language instruction for Perez and his family, and payment of the family’s attorneys’ fees.¹⁶⁸ The settlement gave Perez what he was entitled to under IDEA, but there was another legal problem—SPSD also violated Perez’s rights under the ADA.

Perez subsequently sued in the Western District Court of Michigan, seeking compensatory damages for emotional distress under the ADA.¹⁶⁹ SPSD moved to dismiss, claiming that under section 1415(l) of IDEA, Perez was barred from bringing his ADA claim until he exhausted IDEA’s administrative procedures.¹⁷⁰ The district court agreed with SPSD’s argument and dismissed the suit, which the Sixth Circuit affirmed due to circuit precedent that previously addressed the issue.¹⁷¹ The Sixth Circuit opinion stated that, because Perez settled his IDEA claim, he was “barred from bringing a similar case against the school in court—even under a different federal law.”¹⁷² The Sixth Circuit found that federal law requires families to first exhaust IDEA’s administrative procedures as if the action was brought under IDEA, even if they were suing under another statute.¹⁷³ Because Perez’s core complaint was that SPSD denied him a FAPE, his suit sought relief that was available under IDEA, meaning he had to complete IDEA’s exhaustion requirements even if he wanted to bring a separate ADA claim.¹⁷⁴

The case was then brought before the Supreme Court, and the central question concerned “the extent to which children with disabilities must exhaust the[] administrative procedures under IDEA before seeking relief under other federal antidiscrimination statutes, such as the [ADA].”¹⁷⁵ There had been circuit splits on the interpretation of section 1415(l), so the Court finally decided to address this issue.¹⁷⁶ Previously, the Court declined to address this issue in Fry, articulating that “we leave for another day a further question about the meaning of § 1415(l): Is exhaustion required when the plaintiff complains of the denial of a FAPE, but the specific remedy she requests—here, money damages for emotional distress—is not one that an IDEA hearing officer may award?”¹⁷⁷

Here, the Court examined two features in section 1415(l): first, that IDEA is not meant to restrict an individual’s ability to seek remedies under the ADA or “ ‘other Federal laws protecting the rights of children with disabilities,’ ”¹⁷⁸ and second, that a qualification in the statute prohibits certain lawsuits with the language, “except that before the filing of a civil action under such laws seeking relief that is also available under [section 1415(l)], the procedures under subsections (f) and (g) shall be exhausted . . . .”¹⁷⁹ The preceding subsections (f) and (g) discuss children’s rights to due process hearings and the ability to appeal decisions to state educational agencies.¹⁸⁰

Perez interpreted the statute to require exhaustion of the administrative processes discussed in subsections (f) and (g) only to the extent he pursued a suit for remedies IDEA provided.¹⁸¹ Perez argued that this reading would not “foreclose[] his . . . claim because his ADA complaint [sought] only compensatory damages, a remedy everyone before [the Court] agree[d] IDEA cannot supply.”¹⁸² In contrast, SPSD interpreted the statute “as requiring a plaintiff to exhaust subsections (f) and (g) before [they] may pursue a suit under another federal law if that suit seeks relief for the same underlying harm IDEA exists to address.”¹⁸³ This reading would have prevented Perez from bringing his ADA suit because it stemmed from a FAPE violation, which is a harm IDEA addressed.¹⁸⁴ And Perez had already settled his administrative complaint instead of exhausting the administrative processes in subsections (f) and (g), so he would have been foreclosed from his ADA suit.¹⁸⁵

The Court found Perez’s interpretation comported more consistently with IDEA, particularly with section 1415(l)’s use of “remedies,” which treated it synonymously with “relief.”¹⁸⁶ The first clause discusses remedies, the dictionary definition of which is an enforcement of rights like money damages or an injunction.¹⁸⁷ The statute reads that “[n]othing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities,” so it should be construed that IDEA does not restrict or limit the availability of remedies like money damages under federal statutes, including the ADA.¹⁸⁸ The Court noted that there is an exception to this rule, which prevents individuals from seeking redress under other federal laws unless they exhaust the administrative procedures.¹⁸⁹ But the exception “does not apply to all suits seeking relief that other federal laws provide.”¹⁹⁰ The statute requires the exhaustion of administrative processes to apply only to lawsuits that seek relief that is also available under IDEA.¹⁹¹ Thus, the Court concluded that the exception did not bar Perez from his ADA suit, because he sought compensatory damages—a form of relief that IDEA does not provide.¹⁹² This interpretation required the Court to treat “remedies” and “relief” synonymously, which the Court found IDEA did in various places.¹⁹³ For example, the second clause in section 1415(l) refers to “seeking relief,” which complements how a plaintiff’s complaint includes “a demand for the relief sought.”¹⁹⁴

SPSD then responded by raising Fry as precedent.¹⁹⁵ However, Fry “went out of its way to reserve rather than decide [the] question” brought up in Perez, so it did not advance the school district’s argument.¹⁹⁶ In Fry, the Court held that IDEA’s exhaustion requirement does not apply unless a plaintiff seeks relief for a denial of a FAPE, since that is the only relief available from IDEA.¹⁹⁷ The Court found that Perez presented an analogous situation but ultimately asked a different question about whether a plaintiff needs to exhaust the administrative remedies when they are seeking a remedy that IDEA does not provide.¹⁹⁸ Similar to the Court’s answer in Fry, a plaintiff does not need to exhaust administrative processes under IDEA in this situation.¹⁹⁹ SPSD argued that Congress had practical reasons for requiring exhaustion, no matter the plaintiff’s preferred remedy, because exhaustion enables agencies to exercise their “special expertise” and promotes efficiency.²⁰⁰ The Court found SPSD’s argument “unclear” and that it was a “mistake[] to assume . . . that any interpretation of a law” that better serves its presumed objectives “must be the law,” as laws are the result of “compromise[s],” and no law relentlessly pursues its purposes.²⁰¹ Moreover, the Court reasoned that Congress might have aimed to ease the demand for administrative exhaustion when a plaintiff seeks a remedy available under IDEA but allow an exemption from exhaustion when a plaintiff seeks a remedy that IDEA cannot provide.²⁰² The Court found Perez’s argument more persuasive, reversed the decision of the Sixth Circuit, and remanded the case so Perez could proceed with his ADA lawsuit in district court.²⁰³

B. Perez’s Impact on Special Education Litigation

The Perez decision will impact how school districts and other educational agencies approach and settle IDEA complaints in the future. Families now have more leverage against school districts because they are not barred from seeking compensatory damages for failure to exhaust administrative procedures. School districts will likely approach settlement discussions differently, knowing that families now have an opportunity to be awarded compensatory damages. Although families may have more leverage during negotiations, a potential consequence could be that the Perez decision may lead to greater financial strain on school districts, which would prevent other students with disabilities from receiving their basic educational rights. School districts should anticipate an increase in the number of cases litigated because students can now “bypass [the] often slow-moving administrative proceedings under IDEA when their chief claim is for damages under other federal laws . . . .”²⁰⁴

It is worth noting that, due to systemic issues within school districts and state departments of education, even when families are awarded compensatory remedies, educational agencies may not disburse payments promptly or at all. For example, in New York City, parents of children with disabilities have sought the enforcement of orders from impartial hearings entered pursuant to IDEA, which the state department of education has failed to execute due to limited resources.²⁰⁵ In LV v. New York City Department of Education, parents sued the New York City Department of Education (“NYC DOE”) for failure to implement orders, such as funding tuition programs.²⁰⁶ The parents alleged that the NYC DOE had a “systemic problem” due to its failure to maintain a dedicated system for the timely enforcement of the orders, which deprived the plaintiffs of their right to a FAPE.²⁰⁷ In 2008, a settlement agreement between the parents and the NYC DOE was approved.²⁰⁸ Under the settlement, the NYC DOE was required to implement all impartial hearing orders within the time frame stipulated in the order or thirty-five calendar days after the order date if no time limit was specified.²⁰⁹ However, the NYC DOE failed to comply with the settlement terms for more than a decade. A Special Master was appointed in 2021 to investigate the NYC DOE’s delays in the implementation of the orders. In March 2023, the Special Master issued a report after conducting interviews with the plaintiffs, families, school staff, and NYC DOE staff.²¹⁰

The report highlighted that impartial hearings and orders have reached an all-time high in New York City, with the increased volume of requests attributable to the COVID-19 pandemic.²¹¹ It was recommended that the NYC DOE address its staffing crises in the short term and then digitalize its orders for better organization.²¹² One reason the NYC DOE provided for its inability to implement orders was due to NYC DOE staffing shortages.²¹³ The Special Master report was extremely detailed and included many short- and long-term action steps for the NYC DOE, including forty-one required steps that the NYC DOE had to take within a year. There were suggestions for the hiring, training, and retention of staff in the Implementation Unit, which oversees implementing decisions from impartial hearings, while other changes included creating a structure for parents to contact the NYC DOE when their orders are not implemented, providing a support hotline, and building better technology systems to implement orders.²¹⁴

Although this is a victory for families of students with disabilities in New York City, it comes after a decade of inaction by the NYC DOE. This was due to systemic failures on multiple levels, which is not uncommon in school districts and state educational agencies around the country. This is just one example of how structural issues in a system and a consistently underfunded agency will lead to ineffective educational opportunities. LV v. New York City Department of Education is an example of the persistent challenges in ensuring the effective implementation of special education remedies, even when the law provides for a favorable solution. Students legally entitled to reimbursements or tuition assistance from a school district remained in complex litigation for years to accomplish their goals. The tuition some of the plaintiffs requested was only a few thousand dollars, but the NYC DOE was so ill-equipped at executing orders that it remained noncompliant for years. Unfortunately, there is no simple solution for the NYC DOE’s structural issues. Rather, the NYC DOE faces a complex undertaking as it will need to upgrade its infrastructure and rehaul its staff to better respond to the influx of settlements that have piled up and the new hearings that are coming down the horizon.

This case is illustrative of how receiving monetary compensation is important and helpful for students with disabilities to receive a FAPE under IDEA, but a compensatory remedy might not yield anything substantial. The NYC DOE was bound by court orders, but the plaintiffs in LV still waited more than a decade for compensation. And it is unclear whether the recent judicial order will actually result in greater implementation of orders for other students with disabilities. It seems likely that students with disabilities will continue to endure neglect in the system if the state and educational agencies do not have proper mechanisms in place to provide students with their remedies. The NYC DOE manages the largest public school system in the nation, with a 2023–2024 school year budget of $37.5 billion.²¹⁵ Even as the NYC DOE likely has more resources than other school districts, it still struggles with the volume of orders and order implementation. As more decisions ordering monetary remedies are made post-Perez, school districts and state education departments will need to upgrade their infrastructure to deal with outstanding orders and future settlements. Another concern is whether there is funding and leadership dedicated to making those changes. At schools that struggle with leadership turnover among superintendents or principals, this can lead to inconsistency with vision and changing priorities affecting staff effectiveness and cohesiveness and making it even more difficult to train staff and support teachers in developing strong relationships with students.²¹⁶ Educational agencies should take the Perez decision seriously and take LV as a precautionary tale for judicial orders that compel major changes to address structural issues in regard to special education programs and the rights of students with disabilities.

In recent cases decided in the months following the Perez decision, courts have put together IDEA statute and the precedents from Fry and Perez to evaluate suits against public schools for alleged violations of IDEA, the ADA, or other antidiscrimination statutes. In Dale v. Suffern Central School District, the Southern District of New York found that the plaintiffs were not required to exhaust administrative remedies because the plaintiffs sought “a form of relief that IDEA cannot provide—specifically, compensatory damages,” and because exhaustion was not required in the circumstances because of the ruling precedent of Perez.²¹⁷ In Roe v. Healey, a First Circuit case decided in August 2023, the district court below found that plaintiffs were required to exhaust all their FAPE-related claims first, which included claims under IDEA, associated Massachusetts regulations, section 504 of the Rehabilitation Act, the ADA, and the Fourteenth Amendment (enforced through § 1983).²¹⁸ The Fifth Circuit now looks at whether a complaint concerns a denial of a FAPE.²¹⁹ If it does not concern the denial of a FAPE, then administrative exhaustion is not necessary.²²⁰ If the complaint concerns a denial of a FAPE, the court then looks to the relief sought, and if IDEA cannot provide the relief sought, like compensatory damages, the plaintiff does not need to exhaust IDEA’s administrative requirements.²²¹ Courts appear to be applying Perez consistently and are not barring plaintiffs from seeking relief for a FAPE violation that is not provided by IDEA, even if they have not exhausted the administrative procedures pursuant to section 1415(l).²²² At the very least, Perez clarified a confusing question for district and circuit courts left previously unanswered in Fry, so there is greater clarity for families seeking relief under IDEA or other antidiscrimination statutes.

IV. BEYOND PEREZ: IMPLICATIONS AND CHALLENGES IN SPECIAL EDUCATION POLICY

This Part explores the policy implications of the Perez decision, including whether this decision may cause more harm than benefit. It examines the advantages of allowing compensatory damages for families of children with disabilities, while also weighing the significant financial burdens such damages could impose on school districts. This Part also underscores the need for more explicit and accessible IDEA guidelines, so school districts can better understand and fulfill their obligations under IDEA.

A. Implications of the Perez Decision

IDEA’s exhaustion requirement applies to suits alleging violations under IDEA and to “civil action[s] under [other] laws seeking relief that is also available under [chapter 33].”²²³ Prior to the Perez decision, plaintiffs alleging a denial of a FAPE and requesting a remedy that IDEA did not provide still had to exhaust administrative remedies under IDEA.²²⁴ However, now the Perez Court has opened up the possibilities for families of children with disabilities by allowing them to pursue money damages under different federal laws, even when they are seeking a denial of a FAPE. Following this decision, district courts and courts of appeal have issued decisions citing and applying Perez, acknowledging that exhaustion is required only if the plaintiff seeks relief that is available under IDEA.²²⁵ However, plaintiffs attempting to argue that the exhaustion requirements are no longer relevant in IDEA suits will likely still be unsuccessful, since Perez applies only to plaintiffs who bring suits under a separate federal law besides IDEA and for compensatory damages that IDEA does not provide.²²⁶ Various circuit courts have remanded matters to district courts so they can apply the Perez ruling.²²⁷

While it appears beneficial for families of children with disabilities to receive compensatory damages for inadequate educational opportunities under IDEA, the traditional remedies offered for IDEA noncompliance may be more appropriate for various reasons. For example, when a school district fails to comply with IDEA, restructuring the education system to provide adequate services for its students in the future seems more reasonable than offering a sum of money. Although there is an argument that financial penalties can motivate substantial changes from educational agencies, this approach overlooks the systemic problems within a school district and potential oversight from the state educational agency. In addition, the increased focus on litigation now that parents can bypass administrative procedures, will divert resources from addressing structural issues in school districts’ special education programs, especially given the potential for increased non-meritorious litigation to seek money damages after the Perez decision. The aggregate effect of school districts paying compensatory damages and dedicating more time toward lawsuits could detract attention from students, leaving school districts unable to enhance their special education services and at risk of providing reduced educational quality with reduced financial resources at their disposal.

The NYC DOE published data that showed that 37% of preschoolers with disabilities did not receive their mandated special education services in the 2021–2022 school year.²²⁸ More than 6,500 preschoolers who needed speech therapy did not have one session in the entire school year.²²⁹ Advocates for Children of New York, a non-profit dedicated to helping at-risk students receive a high-quality education, recommends New York City invest $50 million into the city’s upcoming budget to increase preschool special education services.²³⁰ That investment would go into hiring more teachers, increasing pay, and providing services similar to those recommended by the Special Master in LV.²³¹ With thousands of students struggling in school districts to access their services, and even more students potentially not being identified as needing services, it is concerning that, following Perez, more money might be paid out to plaintiffs, while less money goes toward special education services.

Another avenue school districts should turn toward is the Office of Special Education and Rehabilitative Services’ Office of Special Education Programs (“OSEP”), which provides discretionary grant awards.²³² In the 2023 fiscal year, OSEP provided over $110 million under IDEA to fund new programs to help educate children with disabilities.²³³ This includes hiring and training special education staff, early intervention services, and technical assistance to help states meet IDEA data collection.²³⁴ Investment in infrastructure and staffing will help school districts avoid lawsuits in the first place and avoid violating IDEA by providing inadequate special education services or failing to identify and track students with disabilities.

Another effect the Perez decision may have on educational agencies is in their assessment and implementation of IEPs and other accommodations for students with disabilities. School districts and states must account for the possibility of being sued under the ADA and other federal laws regarding equal access. Student requests should be addressed not just through IDEA’s lens but also through the lenses of the ADA and section 504. Failure to do so will leave educational agencies open to greater liability now that the remedy of money damages is accessible to students and families. School districts that are most vulnerable to increased lawsuits are clearly those with longstanding violations of students’ FAPE. For school districts that are diligent about abiding by IDEA’s requirements and providing proper FAPE to their students who require accommodations, the implications of Perez will not be as intense.

The Perez decision allows students with disabilities to bring discrimination claims under the ADA to receive compensatory damages, but plaintiffs will need to prove their discrimination claims. While this presents an enormous opportunity for students like Perez to have their day in court, plaintiffs still need to prove intentional discrimination to receive monetary claims under the ADA.²³⁵ The bar to receive monetary damages under either the ADA or section 504 remains high²³⁶ because proving intentional discrimination is difficult.²³⁷ Plaintiffs have to demonstrate that school districts were “deliberately indifferent to [a] student’s rights, exercised gross misjudgment, or acted in bad faith.”²³⁸ So, although it seems like there will be an uptick in lawsuits against educational agencies post-Perez, that does not mean that plaintiffs will prevail and actually receive monetary damages.

It is more likely that families can leverage this change into receiving larger settlement payouts from school districts, since they can threaten to escalate their claims from negotiations to court.²³⁹ Perry A. Zirkel, a special education law expert and law professor, expressed that the special education field remains “entirely unaffected” because the chances of courts awarding money damages for ADA or section 504 lawsuits “remain very strongly against the parents.”²⁴⁰ Zirkel does acknowledge, however, that after Perez, there will likely be more litigation that increases court congestion and parents’ leverage during settlement negotiations.²⁴¹ Another reason Perez strengthens families’ positions is that attorneys for school districts view litigating IDEA claims as overly cumbersome and in need of major reform.²⁴² Even when school districts prevail, they must pay substantial attorney’s fees for trial preparations and attending hearings, while special education teachers must spend time attending additional IEP meetings, interviewing with attorneys, and preparing to testify—all of which takes them away from their normal classroom responsibilities.²⁴³ Even if a parent’s complaint is frivolous, school districts sometimes agree to parental demands simply because a school district’s own attorney’s fees would likely be greater to litigate than the requested changes to IEPs or compensatory education.²⁴⁴

On the other hand, the ADA could help alleviate financial difficulties with litigation, as judges could award monetary remedies along with discretionary attorney’s fees.²⁴⁵ This potential source of funding could change lawyers’ strategies to bring ADA claims against school districts simultaneously with a due process hearing over IDEA complaints. Special education lawyers could also work on a contingency fee basis now that monetary damages are available. The decision to litigate in court is a personal one, however, and even with monetary damages, families may be reluctant to pursue that avenue.

Another critical factor to consider is the financial constraints and pressure on school districts Perez may cause. There is a strong possibility that allowing compensatory damages and having school districts pay out monetary awards to families will affect school districts’ ability to provide adequate special education services. School districts often operate under tight budgets, with funds allocated across various departments and needs. Because more parents have begun requesting services from school districts under the ADA and section 504, aggregate costs for accommodations like special transportation, testing accommodations, and publicly provided education at private schools have compounded.²⁴⁶ With budget constraints and added costs from litigation and monetary damages, fulfilling all IDEA requirements following Perez could overwhelm school budgets.²⁴⁷ This could lead to the trimming of other operational expenses or essential educational services, like school psychologists, speech pathologists, and extracurricular teachers. Diverting funds from valuable programs for children is a concern, especially because districts in lower-income areas will likely be affected at disproportionate rates. School districts primarily rely on local property taxes, state funding, and federal assistance for their budgets, so the financial ability to comply with IDEA procedures might not be feasible for school districts, even those that want to eradicate the educational inequities that students with disabilities experience. Another possibility is that school districts might be able to wield their insurance coverage effectively, depending on their coverage, to cover or defend against an ADA claim.²⁴⁸ This could reduce litigation costs and help offset higher settlement payouts to plaintiffs for school districts, but it depends on the insurance coverage plan and whether premiums might increase with more claims submitted.

B. Challenges in Policy Implementation and Compliance

School districts should not use an unclear statute as an excuse for their failure to provide adequate learning, however. The long-term harm caused to Perez by SPSD could have been mitigated if SPSD simply provided a certified sign language interpreter from the beginning. Even if IDEA standards are confusing, SPSD should have informed Perez’s family about his actual performance and not given inflated grades. There was a serious violation of Perez’s basic education for twelve years, and such egregiousness in school districts must be prevented. The lack of following basic standards of practice for deaf students in Perez is unacceptable considering there is usually guidance available from each state’s department of education.²⁴⁹ For example, SPSD could have reached out to the Michigan Department of Education Low Incidence Outreach to receive resources about serving students with hearing or visual disabilities.²⁵⁰

Even though there may be financial strain on school districts, it is still essential for school districts to strengthen their special education staff, services, and administration, not merely to avoid lawsuits and financial penalties following Perez, but to genuinely meet the needs of students with disabilities. To reduce the risk of litigation and ensure effective compliance, there is a pressing need for clear, specific guidelines detailing the standards school districts must meet under applicable statutes. That is an imperative issue that Congress should address in the near future, now that Perez has been decided. The National Council on Disability (“NCD”), an independent federal agency, was created to provide recommendations that promote disability policies, programs, and procedures that enhance the lives of individuals with disabilities.²⁵¹ Congress should rely more on the NCD’s recommendations and have the NCD host forums and publish more reports about how to improve IDEA implementation for school districts. Clarifying these compliance standards would provide much-needed direction for school districts, helping them fulfill their legal obligations to students with disabilities and reducing the likelihood of costly legal battles.

Although there is potential for Perez to compel school districts that do not currently meet IDEA requirements to reform their special education programs, the statute’s broad and not-well-defined framework presents additional challenges to effectively complying with IDEA.²⁵² The statute’s ambiguity can lead to varied interpretations of what it requires, which is especially challenging for school districts with limited resources that already struggle to determine what services need to be rendered from convoluted state and IDEA legislation. School districts also need well-trained, qualified professionals available to provide services to students with disabilities, another challenge for districts with limited budgets, as it is difficult to attract and retain talent with low salaries. Training and professional development for the latest requirements in special education law specific to a school district’s city or state is also costly. For successful IEP implementation, there needs to be continuous monitoring and evaluation of students with disabilities in their regular classrooms and during their services. Overworked special education teachers may struggle to manage observations and oversee regular IEP meetings. Limited resources can easily result in poor infrastructure and ineffective tracking of student performance and students with disabilities.

Increased advocacy for state and federal funding to address IDEA noncompliance and ease the burden of responding to an influx of complaints could ease the pressure on school districts. There should also be clearer guidelines and frameworks for districts to better understand and implement IDEA requirements. Establishing a state-level advisory body, for example, can offer guidance and assistance for the state-specific rules, in addition to IDEA procedures. Congress may also choose to address this situation through amendments to IDEA or when IDEA is reauthorized.²⁵³

Race and socioeconomic status are also important considerations for the impact of Perez on students with disabilities. Students of color are generally overrepresented in special education settings, in which they are “disproportionately labeled in ‘soft’ disability categories such as emotionally disturbed, [and] ADHD . . . .”²⁵⁴ Once labeled in those categories, those children often “receive differential access to high-quality education, are not tracked toward college, experience higher rates of suspension and expulsion, and are disproportionately represented in juvenile justice prisons.”²⁵⁵ In 1997, a reauthorization and amendment to IDEA acknowledged the problem of overrepresentation of minority students in special education classes, specifically that “[s]tudies have found that schools with predominately White students and teachers have placed disproportionately high numbers of their minority students into special education.”²⁵⁶ A major weakness in the due process model is that parents who have little agency in the process, like those with limited sophistication in educational advocacy and access to legal representation, struggle to advocate on behalf of their children.²⁵⁷

Additionally, even though families have the option to sue, it is expensive to hire a private attorney to sue a school district, and a family’s socioeconomic means often influences the outcome.²⁵⁸ In Endrew, Endrew’s parents paid for expert witnesses in addition to their lawyer and initially funded a private, specialized education before pursuing reimbursement.²⁵⁹ Endrew had to demonstrate that the school district prevented him from making the necessary progress toward his IEP. If Endrew’s family did not have the funds to cover the fees of the lawsuit and private schooling, he would not have been able to demonstrate his progress. Low-income parents can hardly be expected to undergo this financial burden without a guarantee, since money damages might not offset the cost of expensive litigation. Not to mention, their child might continue to fall further behind while the legal proceedings unfold. As an overwhelming percentage of children with disabilities who qualify for IDEA services are low-income, it is unclear whether more parents will go through with litigation, even with the potential for compensatory damages, simply due to a lack of legal sophistication or limited resources.²⁶⁰

C. Strategic Approaches and Systemic Changes in Special Education

In July 2023, the U.S. Department of Education released guidance to help states address and better understand IDEA requirements, focused on providing students with a FAPE.²⁶¹ “With this guidance, States will have the information necessary to exercise their general supervision responsibilities under IDEA and ensure appropriate monitoring, technical assistance . . . , and enforcement regarding local programs.”²⁶² The guidance is thorough in identifying noncompliance, while outlining the timeline for correcting noncompliance, the enforcement actions a state must take if a program does not meet IDEA requirements, and the proper way to monitor local educational agency programs.²⁶³ States bear the primary responsibility of ensuring that districts are adequately serving students under IDEA through “general supervision,” so better state oversight of local school districts is critical to ensuring that schools meet their obligations to students with disabilities.²⁶⁴

The federal guidance recommends that each state set up a robust monitoring system that “swiftly identifies and corrects noncompliance; increases accountability through the collection of timely and accurate data; and ensures the full implementation of IDEA to improve functional outcomes.”²⁶⁵ This guidance came out after OSEP identified a failure of multiple states to comply with IDEA, so OSEP is providing “accessible and actionable information” for states to exercise their duties to help protect the rights of students with disabilities.²⁶⁶ Between 2014 and 2023, on average, only seven states received the “meets requirements” determination in accordance with IDEA statute for Part B responsibilities regarding providing a FAPE.²⁶⁷ OSEP released this guidance to increase accountability by strengthening states’ general supervision programs to improve compliance. Ideally, this new guidance will take the onus off parents filing formal complaints as more states bolster their oversight mechanisms.

This guidance is another step in the right direction, especially after Perez, because it forces states to take more aggressive actions against noncompliant school districts. Notably, the guidance notes that allegations about IDEA violations can come from media reports, feedback sessions, and other areas beyond the normal formal-complaint setting.²⁶⁸ Now, a school district cannot be found in compliance with IDEA until they have completely resolved the issue that was raised, and school districts must address noncompliance as soon as possible and no later than a year after it is flagged.²⁶⁹ Monitoring ensures that school districts are following IDEA requirements, but OSEP will need to take action beyond issuing guidance for school districts to truly start remedying their IDEA noncompliance.

School districts now face the challenge of adapting to a new legal environment, in which IDEA’s due process procedures may no longer serve as an efficient and exclusive avenue to address the needs of students with disabilities, but as a potential battleground for financial claims. As more complaints and cases are heard in district courts, the Perez decision will likely be a reckoning for school districts with a history of neglecting students with disabilities. This will hopefully provide enough financial incentive for those school districts and state education departments to shore up their management and oversight of special education services. Like the NYC DOE’s new plan, other educational agencies should consider evaluating areas for improvement in their own special education services to avoid litigation and provide an inclusive classroom environment for students with disabilities that IDEA was created to address. Educational agencies are also likely to place greater care in crafting settlements to comprehensively address all issues that families are alleging, so there is greater potential for children with disabilities to access a broader range of remedies and legal protections. There is great potential for the Perez decision to initiate comprehensive and thoughtful change for the treatment and schooling of students with disabilities in classrooms, as educational agencies elect to avoid costly litigation and expensive compensatory damages in favor of addressing systemic issues within their schools.

CONCLUSION

As Justice Gorsuch stated, the Perez decision “holds consequences not just for Mr. Perez but for a great many children with disabilities and their parents.”²⁷⁰ Perez’s heartbreaking story about attending SPSD for over a decade with unqualified interpreters, leaving him unable to understand material or even learn sign language properly, is unfortunately just one of the many stories of students with disabilities who have been failed by their school systems. The Court’s unanimous decision removes unnecessary burdens and clarifies the requirements and remedies that are available for children with disabilities and their families when they pursue litigation against school districts.²⁷¹ The Court explained that a student with a disability need not first exhaust the administrative requirements of IDEA before filing a lawsuit seeking compensatory damages under the ADA or other federal antidiscrimination laws, since IDEA cannot provide those remedies. Though the lasting effects of this decision are yet to be seen, there are practical implications for school districts effective immediately, including a greater urgency to be responsive to parent concerns and student needs, abide by IDEA procedures, and implement student IEPs effectively. At the very least, the special education world can feel cautiously optimistic that Perez will help more students be made whole by the legal system and by educators who ensure that students with disabilities’ unique needs are met. After all, there were approximately 7.6 million children receiving services under IDEA in the 2022–2023 school year, so Perez has far-reaching implications.²⁷²

While this decision empowers families by holding school districts financially accountable, school districts’ ability to provide adequate special education services may be hindered if schools spend more time battling litigation and paying money damages. Nonetheless, this unanimous decision preserves IDEA’s clear purpose of allowing students with disabilities to receive a FAPE as soon as possible and to preserve their legal rights under other federal statutes.²⁷³ Perez is momentous because, as Justice Kagan acknowledged, oftentimes, it is “the parents [of students with disabilities] that have the greater incentive to get the education fixed for their child[ren],” and this decision allows students with disabilities to receive everything they are entitled to under IDEA and also receive compensatory damages under the ADA.²⁷⁴ The decision underscores the need for school districts to address structural problems that prevent students with disabilities from access to their rightful educational opportunities. As school districts grapple with Perez, we will surely see whether the Court’s holding delivers financial redress to children with disabilities who are discriminated against, suffer harm from, and have claims under both IDEA and the ADA, and how the future landscape of special education is transformed as a result.

98 S. Cal. L. Rev. 473

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Isabelle Yuan*

* Executive Senior Editor, Southern California Law Review, Volume 98; J.D. Candidate 2025, University of Southern California Gould School of Law; B.A. History 2020, Wellesley College. Many thanks to the editors of the Southern California Law Review for their thoughtful feedback. Thank you also to Maia Lee and William Wang for their invaluable guidance and support. All mistakes are my own.

Public Protest and Governmental Immunities

October 2024October 2024Timothy Zick*

This Article presents the findings of a quantitative and qualitative study of the application of qualified immunity and other governmental immunities in the context of public protest. Relying on three unique datasets of federal court decisions examining First Amendment and Fourth Amendment claims, the Article concludes that public protester plaintiffs face an array of obstacles when suing state, local, and federal officials for constitutional injuries. Quantitative findings show that protesters’ claims are frequently dismissed under qualified immunity doctrines and that plaintiffs also face strict limits on municipal liability, new restrictions on First Amendment retaliation claims, and the possible extinction of monetary actions against federal officials. Qualitatively, the study shows protesters’ rights are underdeveloped in several respects, including recognition of the right to record law enforcement and limits on law enforcement’s use of force. The study lends additional support and new urgency to calls for qualified immunity reform or repeal, as well as reconsideration of other governmental immunities. It also concludes that much more than money damages for injured plaintiffs is at stake. Lack of adequate civil remedies may significantly chill future public protest organizing and participation.

INTRODUCTION

Between January 2020 and June 2021, there were more than thirty thousand public demonstrations in the United States.¹ In what were perhaps the largest public protests in American history, an estimated fifteen to twenty-six million protesters gathered in the nation’s public streets after George Floyd’s murder.² Although the demonstrations were predominantly peaceful, state and local law enforcement used aggressive policing methods to restrict and suppress them.³ Officers beat protesters with batons, rammed them with bicycles, used dangerous crowd containment strategies, arrested protesters without probable cause, used tear gas and other “less-lethal” force against peaceful assemblies, and unlawfully arrested legal observers including members of the press.⁴ In several cities, including Portland and the District of Columbia, federal law enforcement and other agency personnel also engaged in aggressive and violent protest policing.⁵ Former President Donald Trump told state governors to “dominate” the protesters and send them to jail.⁶

Many of these law enforcement actions violated protesters’ First Amendment and Fourth Amendment rights. Protesters can sometimes obtain judicial injunctions preventing law enforcement from using such tactics in future protests.⁷ Police departments sometimes, though far too infrequently, discipline officers for violating constitutional rights and other misconduct.⁸ However, injunctive relief and departmental discipline do not compensate for the physical and emotional injuries protesters experience at the hands of aggressive and sometimes violent law enforcement officers. As Joanna Schwartz has observed, “for many people, filing a lawsuit [for damages] is the best available way to punish police when they violate the law and give police reason not to violate the law again.”⁹

Both 42 U.S.C. § 1983 (“section 1983”)¹⁰—a statute originally passed to assist the government in combating Ku Klux Klan violence in the South after the Civil War—and the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics¹¹ allow individuals to sue government officials for money damages for constitutional torts (personal injuries stemming from violations of constitutional rights). Section 1983 applies to state and local officials, while Bivens applies to federal officials. However, protesters face a daunting array of obstacles to recovering civil damages under these laws.¹² The constitutional standards that govern protesters’ underlying First Amendment and Fourth Amendment claims may offer less-than-robust substantive protection for protesters’ activities. But even with respect to some egregious violations of protesters’ constitutional rights, governments and government officials possess broad legal immunities that often prevent recovery of civil damages.

Under section 1983, unless officers violate what the Supreme Court has described as “clearly established law,” they cannot sue officials for money damages.¹³ The doctrine of “qualified immunity” shields “all but the plainly incompetent” law enforcement and other officials from liability.¹⁴ In general, plaintiffs cannot recover unless they can show that “controlling authority in their jurisdiction” or a “consensus of cases of persuasive authority” have recognized the underlying misconduct as a constitutional violation.¹⁵ Municipal employers, who have much deeper financial pockets than individual officers, cannot be held accountable unless plaintiffs can prove they adopted and enforced a “policy or custom” of violating protesters’ constitutional rights.¹⁶ Although this evidence is hard to come by, plaintiffs are required to present it as early as the pleadings stage of a lawsuit.¹⁷

In recent years, the Supreme Court has further narrowed the circumstances in which local and federal officials can be sued for civil rights violations under section 1983 and Bivens. For example, in Nieves v. Bartlett, a 2019 decision, the Court held that so long as officers have probable cause to arrest protesters for some criminal offense, however minor, they cannot pursue a First Amendment claim that the officer retaliated against them for exercising expressive rights—unless they can prove law enforcement singled them out and treated them unequally.¹⁸ With regard to Bivens suits against federal officials, the Court has assumed such claims can go forward, but has also strongly suggested they are unwarranted extensions of Bivens.¹⁹ If these claims are rejected, protesters will be barred from suing National Park Service officials, U.S. Capitol police officers, U.S. Secret Service agents, and other federal defendants for money damages in connection with protest policing.

Protesters whose constitutional rights are violated by law enforcement and other officials deserve to be compensated for their injuries. Further, as the 2020–2021 mass protests demonstrated, officials who violate First Amendment, Fourth Amendment, and other constitutional rights need to be deterred from doing so and held accountable.²⁰ To the extent protesters believe officials cannot or will not be held fully accountable for even egregious and abusive constitutional violations, they may be chilled from exercising protest-related rights.

Despite the importance of these remedial and other concerns, there has been no systematic effort to measure the effects governmental immunities have on protesters’ ability to obtain compensation for their constitutional injuries.²¹ To obtain a measure of these effects, this Article presents the findings of a unique quantitative and qualitative study. Unlike prior studies, which focused on qualified immunity across cases and contexts, this study focuses on the fate of First Amendment and Fourth Amendment claims brought by plaintiffs against state, local, and federal officials in public protest cases.²² The study is based on three datasets consisting of more than three hundred federal court decisions and four hundred claims. In addition to qualified immunity in section 1983 cases, the study examines governmental immunities in First Amendment retaliation cases and actions against federal officials. Decisions in each unique dataset were coded to assess defendants’ success in invoking immunities to defeat protesters’ damages claims. Finally, the study provides a qualitative analysis of protesters’ First Amendment and Fourth Amendment rights. This part of the study identifies the types of constitutional claims plaintiffs typically pursued in public protest cases and the substantive “law” as the Supreme Court and lower federal courts have developed it.

The study shows that individual officers had considerable success, particularly at the summary judgment stage, defeating protesters’ section 1983 claims, and municipal defendants had even greater success. Defendants also enjoyed substantial success defeating First Amendment “retaliation” claims under the standard adopted in Nieves, often based on arrests for minor offenses. Owing to the Supreme Court’s recent skeptical pronouncements regarding Bivens claims, the study concludes that defendants are likely to defeat future First Amendment and Fourth Amendment damages claims against federal defendants. While some of the study’s quantitative findings differ from those in prior studies, in general, the results support criticisms of qualified immunity and other immunity doctrines.²³ As applied in public protest cases, qualified immunity does not serve the policy goals the Supreme Court has ascribed to the doctrine, including providing a means of redress for constitutional injuries, deterrence of unlawful conduct, and shielding officers from the burdens of discovery.²⁴ Further, the qualitative portions of the study demonstrates the relatively weak rights protester plaintiffs possess and supports the criticism that qualified immunity doctrine has resulted in a lack of development of substantive rights.²⁵ Based on these findings, the study concludes that without repeal or reform of governmental immunities, public protest itself may be significantly imperiled.

From here, the Article proceeds in four parts. Part I describes the First Amendment and Fourth Amendment rights at stake in the public protest context and the governmental immunities that affect recovery of monetary damages for rights violations. Part II describes the study design and elaborates further on the content of the three unique datasets. Part III presents the study’s quantitative and qualitative findings regarding qualified immunity, municipal liability, First Amendment retaliation claims, and lawsuits against federal officials under Bivens. Part IV proposes several reforms and actions to strengthen protesters’ rights and remedies.

I. PROTESTER INJURIES AND GOVERNMENTAL IMMUNITIES

Protesters who are injured during a public demonstration or other event can bring various legal claims against those responsible for their injuries. The focus in this study is on alleged violations of First Amendment and Fourth Amendment rights by government officials and entities, which are the most common claims pursued by injured protesters. A variety of officials and governmental entities participate in policing public protests. Possible defendants in civil rights lawsuits include state and local law enforcement, U.S. Secret Service, National Park Service, and other federal agency officials, and state or local governments. Each type of defendant can rely on robust governmental immunities. Separately and in combination, these immunities are obstacles for protesters seeking compensation for constitutional injuries.

A. Protesters’ Rights and Remedies

Protesters can experience a variety of constitutional injuries when they participate in demonstrations and other public events. Although other rights may come into play, the two principal federal constitutional protections available to protesters are the First Amendment, which protects speech and peaceable assembly, and the Fourth Amendment, which generally prohibits unreasonable searches and seizures.²⁶

Protesters may be injured owing to a wide array of First Amendment violations.²⁷ For example, officials may unlawfully deny protesters access to “public forums,” including public parks, streets, and sidewalks, where they have recognized rights to speak and assemble.²⁸ Governments may rely on invalid content-based speech regulations or enforce unlawful speech zones and other regulations that unduly restrict speech and assembly.²⁹ Law enforcement officers may also unlawfully retaliate against protesters for exercising their First Amendment rights, confiscate their signs and displays, prohibit the recording of police officers at public demonstrations, and engage in abusive protest policing methods.³⁰

Protesters may also suffer physical and other injuries stemming from Fourth Amendment violations.³¹ They may be subject to arrest without probable cause or unlawfully detained.³² Protesters may also be injured when police officers use excessive force, including physical force used during an arrest, handcuffing and other types of restraints, and use of less-lethal munitions including tear gas, pepper spray, and projectiles.³³ These violations may cause physical and psychological injuries.

There are two general types of remedies protesters can pursue when they are the victims of these or other constitutional torts. They can seek injunctive relief against government actions and policies they allege violate the U.S. Constitution (or state constitutional provisions). For example, peaceful protesters expelled from a public park can seek a court order mandating they and others be allowed to protest there in the future. Or protesters could sue for an injunction preventing police from firing tear gas into crowds of peaceful protesters.³⁴

Enjoining current or future First Amendment or Fourth Amendment violations is an important remedy. However, injunctive relief is forward-looking and declaratory. It does not compensate protesters for physical and other injuries sustained during a demonstration or other protest event because of constitutionally tortious conduct.

The other kind of relief protesters can seek in the event of constitutional violations is an award for monetary damages against individual officials and their government employers. Both section 1983 and the Supreme Court’s decision in Bivens allow individuals to sue government officials for money damages for constitutional torts (personal injuries stemming from violations of constitutional rights).³⁵ Section 1983 applies to state and local officials, while Bivens applies to federal officials. Both section 1983 and Bivens protect against deprivations of rights secured by the U.S. Constitution. Section 1983 explicitly authorizes such claims, while Bivens implies such claims from constitutional rights provisions.

Civil rights suits for money damages are a critically important means of vindicating constitutional rights. Owing to the infrequency of prosecutions brought against law enforcement for civil rights violations and the reluctance of police departments to investigate and punish their own, a lawsuit for damages may be the only way for a protester who has been injured to obtain some measure of justice.³⁶ Monetary relief compensates injured protesters for physical, economic, and other kinds of tangible harm. It can also have deterrent effects in terms of individual officer actions and municipal policies. As in other legal contexts, damages awarded for constitutional violations are intended to make injured parties whole. The damages include not only monetary and out-of-pocket expenditures, but also recovery for pain, suffering, and emotional distress. When plaintiffs prevail in federal civil rights lawsuits, they are also entitled to recover attorneys’ fees.³⁷

Although my study focuses on federal constitutional claims, protesters can sue under state civil rights laws and precedents, which generally adopt similar qualified immunity restrictions in cases involving violation of state constitutional rights. They can also bring state common law personal injury claims including assault, battery, false arrest, damages to property, and infliction of emotional distress.

Protesters’ remedial menu sounds expansive. However, as this study confirms, protesters’ claims for monetary damages against government officials and municipal entities are substantially constrained by an offsetting menu of liability-limiting immunities and related doctrines. As a result, protesters injured while engaged in lawful and peaceful expressive activities often find it difficult or impossible to hold government officials accountable for their actions.

B. Section 1983 and “Qualified Immunity”

Government officials may be entitled to “qualified immunity” in section 1983 and Bivens lawsuits. Qualified immunity is a judicially created doctrine that shields government officials from being held personally liable for constitutional violations.³⁸ When government officials are sued, qualified immunity functions as an affirmative defense they can raise, barring damages even if they committed unlawful acts. (Qualified immunity is not, however, a defense to claims for injunctive relief.) As a general matter, officials enjoy broad legal immunity from civil rights claims under this doctrine. As the Supreme Court has observed, qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”³⁹

Historically, under Supreme Court precedents, whether a defendant was entitled to qualified immunity turned on the subjective “good faith” of the official who committed the alleged violation.⁴⁰ In 1982, however, the Supreme Court replaced that subjective standard with a new test framed in “objective terms.”⁴¹ Under the new test, officials are personally immune from monetary liability “even if they act in bad faith, so long as there is no prior court decision with nearly identical facts.”⁴² As the Court has explained, as long as their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” police officers and other officials are not liable for money damages under section 1983.⁴³

The Court has made clear its new standard is intended to be more protective of government officials than the “good faith” test. At the same time, it has also stated that the standard provides “no license to lawless conduct.”⁴⁴ According to the Court, “[i]f the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.”⁴⁵

However, as Joanna Schwartz has observed after close examination of section 1983 qualified immunity cases, “the Court’s decisions over the next forty years have created a standard that seems virtually impossible to meet.”⁴⁶ Since the Court adopted its objective test, it has applied the doctrine in several ways that have made it far more favorable to defendants.

First, the Supreme Court adopted a heightened pleading standard for complaints in civil cases. The new standard requires that to avoid having claims dismissed, plaintiffs must state facts supporting a “plausible” claim for relief.⁴⁷ Schwartz has observed that this standard “may be particularly difficult for plaintiffs in civil rights cases to overcome.”⁴⁸ In some kinds of cases, including those that focus on the intent of government actors or the existence of local government policies or practices, “[a] plaintiff will not likely have any evidence . . . until they get to discovery.”⁴⁹

Second, to show the law was “clearly established,” the Supreme Court has generally required plaintiffs to point to an already existing authoritative judicial decision (or perhaps multiple decisions), with substantially similar facts. The decisional landscape is narrow. Protester plaintiffs must identify “controlling authority in their jurisdiction” or a “consensus of cases of persuasive authority.”⁵⁰ Unpublished decisions do not count, and courts are reluctant to consider district court decisions.⁵¹ The clearly established standard expands the scope of the qualified immunity defense by requiring that plaintiffs identify Supreme Court or published federal appeals court decisions that are identical, or nearly identical, to the one being litigated.⁵² For example, plaintiffs’ allegation that officers’ use of a particular protest policing method violated their constitutional rights would have to point to published appeals court precedents establishing that use of this method was a clearly established violation of the First Amendment or Fourth Amendment.

Third, the Court has instructed that in assessing clearly established law, courts should not define the inquiry “at a high level of generality.”⁵³ As a result, “[c]ourts have granted officers qualified immunity even when they have engaged in egregious behavior—not because what the officers did was acceptable, but because there wasn’t a prior case in which that precise conduct had been held unconstitutional.”⁵⁴

Fourth, in 2009, the Court altered the way in which courts apply qualified immunity doctrine in a manner that created another significant obstacle for civil rights plaintiffs.⁵⁵ In an earlier decision, the Court held that when assessing a qualified immunity defense, courts must first determine whether there was a violation of a constitutional right and then address whether the law was clearly established as to that right.⁵⁶ However, the Court’s current approach allows courts to grant qualified immunity based solely on whether the law in question was clearly established—that is, without determining whether there was a constitutional violation.⁵⁷ This creates a catch-22 for civil rights plaintiffs. If courts resolve cases based on the lack of clearly established authority, there will be fewer precedents defining constitutional violations.⁵⁸ That situation, in turn, results in decisions concluding that officials are not liable because of a lack of clearly established law.⁵⁹ According to critics, it also has the effect of rendering constitutional protections “hollow.”⁶⁰ By allowing courts to rely on a lack of clearly established law without ruling on the underlying constitutional claim, the Court “perpetuates uncertainty about the contours of the Constitution and sends the message to officers that they may be shielded from damages liability even when they act in bad faith.”⁶¹

Fifth and finally, the Court’s construct of a “reasonable officer” has shifted over time to grant government officials broader deference. In a 1986 decision, the Court famously wrote that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.”⁶² Since then, the Supreme Court has stated that a defendant’s conduct is to be judged on the basis of “any reasonable officer”⁶³ or “every reasonable official.”⁶⁴ As one scholar observed, this shift implies “that in order for a plaintiff to overcome qualified immunity, the right violated must be so clear that its violation in the plaintiff’s case would have been obvious not just to the average ‘reasonable officer’ but to the least informed, least reasonable ‘reasonable officer.’ ”⁶⁵

As Joanna Schwartz has observed, the Court has “[created one additional qualified] immunity hurdle for plaintiffs: defendants’ right to immediately appeal any qualified immunity denial.”⁶⁶ Under normal procedural rules, a litigant would have to wait until the court enters a final judgment in the case to file an appeal. The special appeals process in qualified immunity cases can add “months or years to the case and dramatically increas[e] the costs of litigation” for plaintiffs.⁶⁷

The Supreme Court has offered some general justifications for its qualified immunity standards. It has asserted that qualified immunity achieves a “balance” between allowing victims to hold officials accountable and minimizing “social costs” to “society as a whole.”⁶⁸ Noting that “claims frequently run against the innocent as well as the guilty,” the Court has identified four “social costs.”⁶⁹

First, the Court has explained that the doctrine aims to avoid “the expenses of litigation” by allowing district courts to dismiss suits against officers at early stages in the litigation—and without making fact-intensive inquiries into a particular officer’s motivations.⁷⁰ Second, and relatedly, the Court expressed concern that requiring officials to respond to such litigation can “diver[t] . . . official energy from pressing public issues.”⁷¹ Third, the Court worried that the threat of litigation would “deter[] . . . able citizens from acceptance of public office.”⁷² Finally, the Court noted that the threat of lawsuits could chill lawful law enforcement conduct. It posited “there is the danger that fear of being sued will ‘dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.’ ”⁷³ Along similar lines, the Court explained that the doctrine of “[q]ualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.”⁷⁴

The Court has also defended qualified immunity’s focus on clearly established law on the basis that it would be unfair to hold government officials to constitutional rules they were not aware of at the time of the violation. It first articulated this idea in an early decision, stating that “[a] policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.”⁷⁵ Later, the Court explained: “If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.”⁷⁶ As the Court has observed, “the focus” of qualified immunity is “whether the officer had fair notice that her conduct was unlawful.”⁷⁷

Critics have offered strong challenges to these justifications and to qualified immunity generally.⁷⁸ Some have attacked qualified immunity as both bad law and bad policy.⁷⁹ However, at least for the time being, the Supreme Court appears committed to retaining the doctrine.

C. Municipal Liability

Qualified immunity doctrine applies to claims against individual government officials. However, protesters can also sue municipalities, counties, and other government bodies under section 1983.

Holding governmental entities liable for constitutional violations is important for several reasons. First, these entities have much deeper pockets than individual law enforcement officers.⁸⁰ Second, holding employers liable for constitutional violations caused by their actions or policies puts pressure on those employers to change their unconstitutional behavior.⁸¹ Third, assuming the unconstitutional harm emanated from the employer, it is just to hold it, as opposed to individual officers following the employer’s commands, directly responsible for the violations.⁸²

In Monell v. Department of Social Services, the Supreme Court held that a municipal government can be held liable under section 1983 for constitutionally tortious actions.⁸³ However, under Monell and subsequent precedents, the Court has significantly narrowed the path to recovery.⁸⁴

Local governments can be held liable under section 1983 for enacting unconstitutional policies.⁸⁵ They can also be held liable if an official with “final policymaking authority” violates the Constitution.⁸⁶ However, these theories are “uncommonly relied upon” because they require plaintiffs demonstrate constitutional wrongdoing “at the highest levels of government.”⁸⁷ “Final policy makers” such as local police chiefs are rarely directly involved in applying unconstitutional policies.⁸⁸ Moreover, as Schwartz has observed, “local governments do not usually adopt policies that are unconstitutional on their face—a policy requiring officers to use excessive force, for example, or requiring officers to arrest people who exercise their First Amendment free speech rights.”⁸⁹

Most commonly, to establish Monell liability, plaintiffs must demonstrate a deprivation of a federal right occurred because of a “policy or custom” of the local government’s legislative body or of those local officials whose acts may fairly be said to be those of the municipality.⁹⁰ The informal policy or custom alleged to have caused the constitutional injury must be “so persistent and widespread as to practically have the force of law.”⁹¹ Under the policy or custom theory of section 1983 liability, local governments cannot be held liable for the actions of their employees solely because of their employment status.⁹² Rather, an employee must be acting pursuant to a municipal policy or custom, and the employer can only be held liable if one of their employees has committed an underlying constitutional violation pursuant to the policy or custom.⁹³

One theory or basis of policy or custom municipal liability that is particularly germane to public protest cases is the charge that local governments failed to train and supervise law enforcement and other officers.⁹⁴ As with other theories, however, it is very difficult to prevail on this claim. Courts have essentially treated the way a police force chooses to train its officers as a matter of policy not generally subject to judicial second-guessing in civil rights lawsuits. As the Supreme Court has noted, “the inadequacy of police training may serve as the basis for § 1983 liability,” but “only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.”⁹⁵

At each stage of litigation, protester plaintiffs face severe challenges in terms of alleging and proving a policy or custom sufficient to hold local governments accountable. At the complaint-drafting stage, plaintiffs often lack access to the facts necessary to allege an informal policy or custom.⁹⁶ Thus, they may not be able to survive a local government’s motion to dismiss for failure to meet basic pleading requirements. Even at later stages of litigation, plaintiffs are likely to struggle to adduce evidence not just that their constitutional rights were violated, but that any violations were caused by an informal policy or custom. Among other issues, the Supreme Court “has not clarified what can serve as evidence of prior constitutional violations sufficient to put police chiefs on notice that their officers need better training or supervision.”⁹⁷

The municipal liability standards have resulted in a complex, stringent, and “nonsensical” standard of municipal liability.⁹⁸ As one commentator observed, “[the] doctrine of municipal liability is convoluted and can require difficult inquiries into which city officials are ‘policymakers’ under state law on local government, into whether a[n] official was acting in a ‘local’ or ‘state’ capacity, into the extent of departmental ‘custom’ authorizing constitutional violations, into individual cities’ training and hiring processes, and into demanding questions about causation and fault.”⁹⁹

D. First Amendment “Retaliation” Claims

In addition to the many challenges posed by general qualified immunity doctrines under section 1983, the Supreme Court has recently adopted new liability limits on a specific type of claim based on retaliation for the exercise of First Amendment rights. The Court has recognized a general defense to such claims based on a finding of probable cause to arrest the speaker for any violation of law.

The First Amendment prohibits government officials from subjecting individuals to retaliatory actions because they engaged in protected speech.¹⁰⁰ To succeed on a First Amendment retaliation claim, plaintiffs must prove they engaged in a constitutionally protected activity, the defendant’s actions would “chill a person of ordinary firmness” from continuing to engage in the protected activity, and the protected activity was a substantial motivating factor in the defendant’s conduct—i.e., that there was a nexus between the defendant’s actions and the intent to chill speech.¹⁰¹

These claims have always been difficult to win. Proving retaliatory motive is difficult, but in any event not sufficient. The speaker must show that the adverse action would not have been taken absent the official’s retaliatory motive.¹⁰² For example, suppose participants arrested at a public protest claimed law enforcement restricted or suppressed their speech in retaliation for the message they conveyed. To prevail, plaintiffs must show the officer would not have arrested them or interfered with their protected speech “but for” the retaliatory reason. If the officer can show the protesters were obstructing traffic or there was any other non-retaliatory reason for the arrest, the First Amendment claim would fail.

One long-unsettled question in such cases was whether the existence of probable cause to arrest a speaker precluded a First Amendment retaliation claim brought under section 1983. In Nieves v. Bartlett, the Supreme Court answered this question in the affirmative.¹⁰³

In Nieves, the Court upheld the dismissal of a First Amendment retaliation claim brought by an individual arrested at a festival after he exchanged heated words with officers assigned to police the event. The Court held that when speakers allege officers arrested them in retaliation for the exercise of First Amendment activities, probable cause for the arrest is usually a complete defense.¹⁰⁴ Echoing its justifications for adopting the general qualified immunity standards, which were discussed earlier, the Court indicated it was concerned that officers who must often make “split-second” decisions when deciding whether to arrest will sometimes rely on the suspect’s protected speech in doing so.¹⁰⁵ The Court also reasoned that determining whether the arrest was in retaliation for the speech in such cases would often be difficult.¹⁰⁶ Thus, it concluded plaintiffs should be required in retaliation cases to plead and prove the arrest was objectively unreasonable before inquiring into the official’s subjective mental state.¹⁰⁷

The Nieves standard applies in a broad variety of contexts. However, the Court justified it using a protest-related example. The Court was concerned, it said, that “policing certain events like an unruly protest would pose overwhelming litigation risks” for officers who arrest participants.¹⁰⁸ “Any inartful turn of phrase or perceived slight during a legitimate arrest,” the Court worried, “could land an officer in years of litigation.”¹⁰⁹ The Court was concerned officers would be deterred from discharging their duties or “would simply minimize their communication during arrests to avoid having their words scrutinized for hints of improper motive—a result that would leave everyone worse off.”¹¹⁰

The Nieves rule is subject to an exception. The Court concluded “the no-probable-cause rule should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”¹¹¹ If a plaintiff produces this comparative evidence, the burden shifts to the official to show some non-retaliatory basis for the arrest.¹¹²

The Nieves rule makes it more difficult for protesters, reporters, and others attending or participating in a public protest to demonstrate they were arrested in retaliation for their communications or other First Amendment–protected activities.¹¹³ As the data from this study confirm, in most cases it will mean that probable cause to arrest a speaker for any offense, however minor, will negate a First Amendment retaliation claim.¹¹⁴

E. Damages Claims Against Federal Officials

In Bivens, the Court implied a cause of action for damages against federal officials who violate individuals’ rights under the Constitution.¹¹⁵ The claim in Bivens was based on a violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures.¹¹⁶ The Court has also recognized Bivens actions for Fifth Amendment and Eighth Amendment violations.¹¹⁷ However, during the past four decades, the Court has not recognized any additional Bivens claims. It has become increasingly skeptical of Bivens lawsuits in general, and specifically in the context of First Amendment and Fourth Amendment claims.¹¹⁸ At this juncture, it is not clear protesters have any right to sue federal officials for damages relating to First Amendment or Fourth Amendment violations.

According to the Court, Bivens and its progeny “were the products of an era when the Court routinely inferred ‘causes of action’ that were ‘not explicit’ in the text of the provision that was allegedly violated.”¹¹⁹ The Court has criticized this “ancien regime,” noting that “[i]n later years, [it] came to appreciate more fully the tension between this practice and the Constitution’s separation of legislative and judicial power.”¹²⁰ Accordingly, the Court noted, “for almost 40 years,” it has “consistently rebuffed requests to add to the claims allowed under Bivens.”¹²¹

In 2017, the Court outlined a two-step framework intended to limit the expansion of Bivens remedies.¹²² Under this framework, a court must first consider whether a case “arises in a ‘new context’ or involves a ‘new category of defendants.’ ”¹²³ The Court’s “understanding of a new context is broad.”¹²⁴ The standard is whether “the case is different in a meaningful way from previous Bivens cases” decided by the Court.¹²⁵ If so, the court must “ask whether there are any ‘special factors that counsel hesitation’ about granting the extension.”¹²⁶

According to the Court, “special factors” are rooted in concerns about the separation of powers among the branches of federal government.¹²⁷ They include, but are not limited to, the existence of alternative remedies and respect for coordinate branches of government. Thus, a court must “consider the risk of interfering with the authority of the other branches, . . . ask whether ‘there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy’ . . . and ‘whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.’ ”¹²⁸ If any factor causes a court to hesitate, the court should “reject the request” to recognize the Bivens claim.¹²⁹ In general, the Court has described the expansion of Bivens as “a disfavored judicial activity.”¹³⁰

Although the Court has assumed First Amendment claims may be brought under Bivens, it has never expressly held as much and has sometimes expressed skepticism regarding such claims.¹³¹ In Egbert v. Boule (2022), the Court ruled that plaintiffs could not sue federal officials for money damages based on First Amendment retaliation and Fourth Amendment excessive force claims.¹³² The Court rejected both claims on the grounds that implied actions under Bivens do not extend to “new” contexts and Congress was in a better position to determine whether to recognize any such actions.¹³³ Although Egbert did not arise in the context of a public protest, the Court’s holding that First Amendment retaliation claims and Fourth Amendment excessive force claims are not viable under Bivens bodes ill for similar claims in other contexts.

II. STUDY DESIGN AND DATASETS

The purpose of this study is to assess how the foregoing governmental immunities have affected plaintiffs’ First Amendment and Fourth Amendment claims against government officials under section 1983 and Bivens for injuries sustained at public demonstrations and other events. The study tracks the disposition of more than 400 constitutional claims in over 300 federal civil rights cases.

Unlike other qualified immunity studies, which examined broad categories of decisions or dockets, my study focuses on a discrete set of activities—“public protest”—that gave rise to section 1983 and Bivens claims.¹³⁴ The decision to focus on public protest cases and claims required that the study define and identify “public protest.” For purposes of all three datasets, “public protest” was generally defined as a set of facts in which one or more individuals participated in a public march, rally, demonstration, parade, or other similar activity. Claims involving conduct related to public protest, including leafletting, public displays, and certain kinds of expressive conduct such as flag burning, were also included in the datasets. By contrast, the datasets excluded First Amendment and Fourth Amendment claims in areas including prisoner litigation, employment-related actions, conflicts involving K-12 student speech, and actions filed in connection with ordinary traffic stops or domestic disturbance calls. This definition obviously could be narrower or broader, and the public protest limit necessitated some judgment calls. Not all decisions involved large or mass demonstrations, but many did, and all included claims involving the kind of “out of doors” protest, hand-billing, and related activities typically engaged in during traditional public protest activity.¹³⁵

To conduct the study, I compiled three unique datasets. Each dataset consists of federal district court and appeals courts (including Supreme Court) decisions, which I read and coded. The first dataset, Qualified Immunity, includes 253 district and appellate court decisions, both published and unpublished, in which qualified immunity was raised as a defense to First Amendment or Fourth Amendment claims in the context of public protests.¹³⁶ In combination, these decisions addressed a total of 468 First Amendment and Fourth Amendment claims. The study examined cases from 1982, when the Supreme Court adopted its modern “two-step” qualified immunity approach, to December 2022.¹³⁷

Each of the 253 decisions in the Qualified Immunity dataset was coded for: (1) court; (2) date of decision; (3) whether the decision was published or unpublished; (4) type of constitutional claim (First Amendment or Fourth Amendment); (5) procedural posture in which a qualified immunity defense was raised (Summary Judgment, Motion to Dismiss, or Trial); (6) disposition of the motion to dismiss on qualified immunity grounds (granted or denied); (7) whether denials of summary judgment addressed the merits or were based on the existence of genuine issues of material fact; (8) whether a motion to dismiss or for summary judgment was granted based on Step One, Step Two, or Both steps of the qualified immunity analysis; (9) in appeals, whether the appellate court affirmed or reversed the district court’s qualified immunity disposition; (10) description of the First Amendment or Fourth Amendment claim; and (11) basis for the court’s conclusion on the qualified immunity motion. All decisions in the Qualified Immunity database were also coded for (12) whether plaintiffs pursued a claim for municipal liability under Monell; (13) whether a defense motion to dismiss or for summary judgment on the Monell claim was granted or denied; and (14) general grounds for the court’s disposition of the municipal liability claim.

The other two datasets are more limited in scope. The Nieves Retaliation Claims dataset includes forty-one published and unpublished federal court decisions from 2019 through December 2022.¹³⁸ Each decision was coded for (1) procedural posture; (2) disposition of a defense motion to dismiss or for summary judgment based on Nieves; (3) criminal offense(s) charged; (4) whether the decision addressed the Nieves unequal treatment exception and, if so, the court’s disposition of that part of the claim; (5) whether plaintiffs pursued a claim for retaliation against the municipality; and (6) disposition of the retaliation claim.

The Bivens Claims dataset includes twenty-six published and unpublished decisions between 1971 and the end of December 2022 in which courts addressed First Amendment or Fourth Amendment Bivens claims in the context of public protests.¹³⁹ Each decision was coded for (1) type of constitutional claim (First Amendment, Fourth Amendment, or both); (2) whether the court recognized a Bivens First Amendment or Fourth Amendment cause of action; and (3) in the event the court did not recognize the Bivens action, its reasoning (for example, claim arises in a “new context,” the presence of “special factors,” and so forth).

All three datasets have statistical and other limitations that narrow the study’s scope and findings. Most empirical qualified immunity studies have relied on decisions available on Westlaw.¹⁴⁰ However, as Joanna Schwartz has observed, because Westlaw omits many unpublished opinions as well as lawsuits resolved without any opinion, such studies can “say little about the frequency with which qualified immunity is raised, the manner in which all motions raising qualified immunity are decided, and the impact of qualified immunity on case dispositions.”¹⁴¹ However, as Schwartz acknowledges, such studies can “offer insights about the ways . . . courts assess qualified immunity . . . in a written opinion.”¹⁴² The study examines opinions accessible to courts when they analyzed qualified immunity and other defenses in protest cases.

There are some quantitative limitations. Since my study is limited to claims brought in “public protest” cases, it is not based on a random or complete sample of all qualified immunity decisions. Thus, quite intentionally, it does not purport to make claims about the dispositions of all qualified immunity motions. Moreover, because my study considers both district court and appeals courts decisions, and primarily claims addressed at both the motion to dismiss and summary judgment stages, it cannot account for all final dispositions of qualified immunity motions in the study.¹⁴³ For example, a qualified immunity motion denied at the motion to dismiss stage could be granted or denied later at summary judgment. Or the case may settle. The Retaliation Claims and Bivens Claims datasets, which are smaller samples, have similar quantitative limitations. In addition, the sample sizes in these two datasets are relatively small. The three datasets provide snapshots of how courts have disposed of qualified immunity and other motions in public protest cases during the relevant time periods.

Even with the foregoing limitations, the study offers a rare glimpse into how courts address qualified immunity in public protests cases. The data also provide information about the most common types of claims protesters pursued and how these different claims fared under qualified immunity, whether defense motions to dismiss or for summary judgment were successful, how courts applied the two-step qualified immunity analysis, whether Monell claims were pursued and sustained, the effect of Nieves on First Amendment retaliation claims, and whether protesters have been able to pursue Bivens actions. In addition, the study’s qualitative analysis helps reveal the extent to which First Amendment and Fourth Amendment law has developed—or failed to develop—in the public protest context and the extent to which courts have left important questions unanswered. In sum, the study offers an in-depth analysis of how qualified immunity has affected constitutional claims brought by protester plaintiffs.

III. DATA AND FINDINGS

This Part presents the study’s data and principal findings. It begins with a quantitative and qualitative examination of the largest dataset, Qualified Immunity. The Part then turns to the effect of governmental immunities and defenses on municipal liability, First Amendment retaliation claims, and protesters’ Bivens actions.

A. Section 1983 and Qualified Immunity

This Section presents findings from the Qualified Immunity dataset. It begins with a general overview of the dataset, and then discusses more detailed quantitative findings concerning First Amendment and Fourth Amendment claims. In connection with the discussion of these claims, the Section also presents qualitative assessments of the state of clearly established First Amendment and Fourth Amendment law in public protest cases.

1. Qualified Immunity Dataset: Overview

Table 1 contains general information about the overall number of cases, whether decisions were published or unpublished, and the distribution of federal district court and courts of appeals decisions in the Qualified Immunity dataset. As indicated, this dataset includes federal district and appellate court public protest decisions from 1982 through the end of 2022 in which defendants sought dismissal or summary judgment based on qualified immunity. It does not include state-level constitutional claims or qualified immunity decisions.

The Qualified Immunity dataset consists of 253 (published and unpublished) federal district court and appellate court decisions. As noted earlier, for purposes of establishing whether there is clearly established law regarding a constitutional right, courts look primarily to published courts of appeal decisions (although some will also look to published district court decisions). There are more than twice as many published (170) as unpublished (83) decisions in the database. In terms of precedents most likely to be considered controlling, there are eighty-six published appeals court decisions—including two decisions from the Supreme Court.¹⁴⁴

Table 1. General Case Data
Cases in the Dataset	253
Published Cases	170
Unpublished Cases	83
Appellate Cases (Including Supreme Court)	114
District Court Cases	139
Published Appellate Cases	86

The study of the Qualified Immunity dataset focused primarily on the disposition of First Amendment and Fourth Amendment claims subject to defense motions for dismissal or summary judgment based on qualified immunity. As indicated in Table 2, the dataset includes 468 distinct First Amendment and Fourth Amendment claims as to which defendants filed such motions. A claim was counted just once, even if brought against multiple defendants—unless the court disposed of the claim differently for certain defendants, in which case the claim was counted more than once. In general, courts tended to analyze qualified immunity motions by multiple defendants together.

There were slightly more First Amendment (253) than Fourth Amendment (215) claims in the dataset. More qualified immunity motions concerning these claims were decided by federal district courts (287) than by federal appellate courts (181). In many cases, no appeal appears to have been filed after the district court disposition of defense qualified immunity motions. Although it is possible appeals were filed but not noted on Westlaw, many cases appear to have terminated at the district court level without any interlocutory or other appeals.

The study examines constitutional claims subject to defense qualified immunity motions, again in cases that resulted in a published or unpublished opinion available on Westlaw. If, at the time the study period closed, an appellate decision was not available in Westlaw, then the district court decision was included in the dataset. In all other cases, the highest available appellate decision (Supreme Court or federal court of appeal) was coded instead of the district court opinion.

Table 2. General Claims Data
Claims in the Dataset	468
First Amendment Claims	253
Fourth Amendment Claims	215
Claims Considered in District Courts	287
Claims Considered in Appellate Courts (Including Supreme Court)	181

Like other studies, mine tracks the disposition and analysis of constitutional claims brought by protester plaintiffs.¹⁴⁵ A docket study focusing on public protest cases, as defined for purposes of the study, was not feasible. Even if all public protest cases could be identified through a review of court dockets, to get a substantial sample one would need to review complaints filed in a multitude of districts.¹⁴⁶ Focusing on defendants would provide some information about how many individual officers were sued and how many achieved dismissals, but it would not provide information about why they were sued or how courts analyzed constitutional claims in qualified immunity cases.¹⁴⁷ Focusing on case-level data, for example, how many cases resulted in dismissal on qualified immunity grounds, would likewise not tell us what kinds of claims protesters typically bring, the dispositions or success rates of defense motions to dismiss or for summary judgment regarding specific claims, and information about substantive First Amendment and Fourth Amendment law. My study focuses primarily on claim-level findings to learn how courts have analyzed motions to dismiss claims based on qualified immunity in the specific context of public protest.

Success rates overall and by claim for defense motions to dismiss or for summary judgment based on qualified immunity are reported in Figure 1. The Qualified Immunity dataset includes only cases in which defendants raised a qualified immunity defense as to one or more constitutional claims and courts explicitly addressed the defense. A defense qualified immunity motion was deemed “successful” if it was granted or dismissal of the claim was upheld on qualified immunity grounds. Motion success was not defined as disposing of all claims in the case, including Monell, state law, and other actions.¹⁴⁸ Rather, my study focused on the qualified immunity determination with respect to each claim of constitutional wrong.

Figure 1. Defense Q.I. Motion Success Rates

Although approximately a third of qualified immunity motions succeeded at the pleadings stage (53/152 for all claims), as in other studies defendants were far more likely to prevail at summary judgment.¹⁴⁹ Examination of qualified immunity decisions in protest-related cases thus adds some support for the claim that the defense does not generally serve the goal of weeding out cases at the earliest stages of litigation and sparing defendants the expenses of discovery.¹⁵⁰ Defense success rates at the motion to dismiss stage in my study are somewhat higher than those reported in some others, but generally consistent with dismissal findings across studies.¹⁵¹ In sum, in most protest cases plaintiffs were able to proceed to discovery on their claims.

As noted, courts were more likely to grant summary judgment on qualified immunity grounds than to dismiss at the pleadings stage. Across all claims, defendants prevailed on 58% (183/313) of their motions. That success rate was consistent across claims, with courts granting 60% (101/168) of defense qualified immunity motions in First Amendment cases and 57% (82/145) of summary judgment motions in Fourth Amendment cases. Again, these numbers are generally consistent with those reported in other studies.¹⁵²

Courts denied summary judgment as to 130 claims. In 53% of those cases (69/130), the defense motion was denied because there were genuine issues of material fact at issue. In the other 47% (61/130) of summary judgment motions, courts denied the motions on the merits (that is, held that plaintiffs had met their burden of showing a violation of clearly established law).

As shown in Figure 2, appellate courts were more likely than district courts to rule in defendants’ favor on qualified immunity. In published and unpublished decisions available on Westlaw, district courts granted 45% (128/287) of defense motions. Appellate courts ruled in defendants’ favor on 60% (109/181) of plaintiffs’ constitutional claims. These numbers are likely owing in part to defendants’ low rate of success at the pleadings stage, which in many instances were the last results coded. District courts, which faced more defense motions at the pleadings stage, were inclined to allow for some factual development before dismissing plaintiffs’ claims.

Figure 2. Q.I. Motion Success Rates by Court

Figure 3 shows that appellate court success rates were similar if one considers only the eighty-six published decisions. Courts granted or upheld defense qualified immunity defenses with respect to 57% (77/135) of all constitutional claims. In published appellate decisions, the rate of success for defendants was still lower (48% or 15/31) at the motion to dismiss stage than when the case had reached the summary judgment stage (60% or 62/103). However, in published decisions appellate courts ruled in defendants’ favor at the pleadings stage at a somewhat higher rate than did all courts at that stage.¹⁵³ Appellate courts may have been responding to the Supreme Court’s directive that non-meritorious cases should be dismissed at an earlier stage, or they may simply have been convinced that plaintiffs had not adequately pleaded a clearly established violation under applicable pleading rules.

Figure 3. Q.I. Motion Success Rates in Published Appellate Decisions

As discussed earlier, under qualified immunity doctrine, courts can dismiss or grant summary judgment for defendants if the plaintiff has not demonstrated a constitutional violation occurred (“Step One”) or if, despite the occurrence of a constitutional violation, the law was not “clearly established” at the time the violation occurred (“Step Two”).¹⁵⁴ Prior to 2009, the Supreme Court instructed lower courts to address these two steps in order.¹⁵⁵ In 2009, the Court held the sequence was not mandatory; thus, courts could skip Step One and base decisions solely on analysis at Step Two.¹⁵⁶

Grants of defense qualified immunity motions were coded for sequencing. If a claim was dismissed or defendants prevailed on summary judgment, the disposition was coded “Step One” when the basis for granting or upholding qualified immunity was the absence of a constitutional violation, “Step Two” if the sole basis for granting or upholding qualified immunity was the court’s conclusion that the law was not “clearly established,” and “Both” if the court granted or upheld qualified immunity on the basis that there was a constitutional violation but the law was not “clearly established” at the time. The few instances in which the court’s decision was unclear regarding which Step it was relying on were also coded as “Both.”

Figure 4. Sequencing and Success Rate

As indicated in Figure 4, when courts ruled in defendants’ favor in public protest cases, they did so at Step One 57% of the time (133/235). For Fourth Amendment claims, courts granted qualified immunity at Step One 63% (67/107) of the time. That percentage dropped to 52% (66/128) for First Amendment claims. The higher rate for Fourth Amendment claims may be attributable to the lenient probable cause and excessive force standards applied in Fourth Amendment cases, which make it more likely courts will conclude there was no constitutional violation. Of course, the higher success rates for defense motions may also be attributable to the relative weakness of the plaintiffs’ Fourth Amendment claims. Although not included in Figure 4, the number of overall Step One dispositions was somewhat higher (65% or 50/77) if one looks only at the eighty-six published appellate court decisions in the dataset.

Scholars have raised the concern that if courts proceed directly to Step Two there will be fewer opportunities to develop “clearly established” law, thus making it more difficult for plaintiffs to prevail in qualified immunity cases.¹⁵⁷ There is also a related concern that constitutional law will stagnate or fail to develop if courts do not rule on the constitutional question at Step One.¹⁵⁸

My data do not indicate courts are engaged in widespread avoidance of constitutional issues in public protest cases. But again, the findings may be driven in part by the constitutional standards courts are called upon to apply to First Amendment and Fourth Amendment claims. Those standards call for, among other things, consideration of context and assessment of the “reasonableness” of governmental actions. The constitutional doctrine may make it easier for courts to dispose of claims by concluding no violation has occurred, that plaintiffs have not satisfied their burden of providing evidence of a constitutional violation, or that the law is not sufficiently clear.

The data show that in a significant percentage of instances, 35% overall (82/235), courts relied on the Step Two conclusion that the law was not “clearly established.”¹⁵⁹ In these instances, courts did not address the substance of the constitutional claims. As discussed later, judicial reliance on a lack of clearly established law in public protest cases has probably limited development of substantive constitutional law regarding First Amendment and Fourth Amendment rights.¹⁶⁰ Consider that in 42% (54/128) of rulings in defendants’ favor on First Amendment claims, courts relied on the absence of clearly established law regarding issues ranging from the constitutionality of exclusions of protesters from public properties to the right to record law enforcement. Those rulings make it more difficult for plaintiffs in future cases to prove a violation or show the law is clearly established.¹⁶¹ Courts also avoided the constitutional question in motions addressing a quarter of Fourth Amendment claims.

Some commentators have suggested that qualified immunity doctrine allows for development of substantive law because it permits courts to find a constitutional violation at Step One but still hold the law was not clearly established at Step Two.¹⁶² My data show little evidence of such innovative judicial practice. Only 6% (8/129) of First Amendment claims were disposed of in this way, with a slightly higher percentage of Fourth Amendment claims (11% or 12/108). Again, these percentages track other studies’ findings.¹⁶³

Finally, my data show that appellate reversal or affirmance rates in protest-related qualified immunity cases were very low. Overall, appeals courts reversed lower court decisions on qualified immunity only 33% (59/181) of the time. For First Amendment claims, the reversal rate was 33% (36/108) and for Fourth Amendment claims it was 32% (23/73). These reversal rates are generally consistent with those reported in other qualified immunity studies.¹⁶⁴ A closer look at these data demonstrates that appellate courts reversed district courts 40% of the time (25/62) when they denied a qualified immunity motion, but only 26% of the time (30/114) when they granted a qualified immunity motion. This finding is consistent with the data in Figure 2, which show appellate courts were more likely to rule in favor of qualified immunity across a range of claims.

2. First Amendment Claims

In addition to the general claims data discussed above, the Qualified Immunity dataset includes more specific information about First Amendment claims. The data include the types of claims protesters pursued, the success rates for qualified immunity motions respecting different types of claims, and the substantive law as it pertains to the First Amendment rights of public protesters.

i. Types of Claims

There are 253 First Amendment claims in the Qualified Immunity dataset. Figure 5 shows the distribution and frequency of the six most common types of First Amendment claims.

Figure 5. Types of First Amendment Claims

Retaliation claims were the most frequently litigated type of First Amendment claim. Law enforcement or other government officials violate the First Amendment when they arrest, use force against, or otherwise restrict expressive activity in retaliation for the exercise of First Amendment rights.¹⁶⁵ To prevail on a retaliation claim, “the plaintiffs must show that they engaged in protected activity, that the defendants’ actions caused an injury to the plaintiffs that would chill a person of ordinary firmness from continuing to engage in the activity, and that a causal connection exists between the retaliatory animus and the injury.”¹⁶⁶

As discussed earlier, in Nieves v. Bartlett (2019), the Supreme Court modified the law with respect to retaliation claims.¹⁶⁷ The Qualified Immunity dataset includes decisions addressing seventy-eight retaliation claims subject to the standards that applied prior to Nieves.¹⁶⁸

Nearly half (124/253 or 49%) of the First Amendment claims pertained to protesters’ rights to access public properties and the doctrines that apply to speech and assembly in those places. Individuals and groups have a First Amendment right to speak and assemble in certain public properties, including public streets, parks, and sidewalks.¹⁶⁹ While governments can impose content-neutral time, place, and manner restrictions on speech and assembly in these “quintessential” public fora, they generally cannot restrict expression based on its content or prohibit access altogether.¹⁷⁰ Under the First Amendment, regulations of speech based on subject matter or viewpoint receive strict judicial scrutiny and must be narrowly tailored to further compelling governmental interests.¹⁷¹ Thirty-seven First Amendment claims asserted that government regulated speech based on its content. Time, place, or manner regulations are subject to a lower degree of judicial scrutiny. They must be content-neutral, supported by important governmental interests, narrowly tailored to burden no more speech than necessary, and must leave available alternative channels of communication.¹⁷² Fifty-three First Amendment claims involved application of this standard.

Under the First Amendment, protesters and other speakers also have a right to access other public forums, primarily depending on the extent to which governments intend to allow expressive activities in these places and the extent to which such activities would affect their ordinary functioning.¹⁷³ In places generally open to the public for expressive purposes, or so-called designated public fora, governments can impose content-neutral time, place, and manner regulations.¹⁷⁴ In “non-public” or “limited” public forums, regulations need only be viewpoint-neutral and reasonable.¹⁷⁵ Thirty-four First Amendment claims concerned government restrictions on access to various public properties.

Rounding out the First Amendment claims, protesters brought thirty-two claims challenging a variety of policing methods—for example, use of tear gas, herding or “kettling” of protesters, and surveillance of protest groups. Protesters claimed these actions chilled or prohibited expression. Plaintiffs also pursued a dozen claims relating to arrests or other adverse actions taken against protesters who were recording law enforcement at public demonstrations. As discussed below, whether there is a First Amendment right to record police is an issue on which courts remain somewhat divided.¹⁷⁶

ii. Claims Disposition Data

Figure 6 shows the success rates for qualified immunity motions respecting the five most common types of First Amendment claims.¹⁷⁷ Significant findings relate to the procedural posture of qualified immunity dispositions and the disparate success rates for qualified immunity motions challenging certain claims.

Figure 6. Q.I. Motion Success Rates by First Amendment Claim

Although some of the sample sizes are small, the data generally show that plaintiffs were able to keep claims alive at the pleadings stage. The success rate percentages for retaliation, content-based speech regulations, and access to forum claims were in line with the overall pleadings stage dismissal percentages reported earlier.¹⁷⁸

Two claims produced unanticipated results. In qualified immunity motions respecting challenges to time, place, and manner regulations, defendants prevailed 63% (10/16) of the time. The judicial balancing that applies to time, place, and manner regulations generally requires consideration of factual context not typically available at the pleadings stage. The high success rate may reflect the deferential standard applicable to content-neutral time, place, and manner regulations, the uncertain state of the law as it pertains to application of the standard, the relative strength or weakness of the claims in the dataset, or some combination of these factors.

The other unexpected finding is that only 7% (1/14) of motions to dismiss First Amendment challenges to protest policing methods were successful. However, several of these claims relied on allegations that police had used aggressive policing methods against compliant and peaceful protesters or dispersed assemblies without cause or warning.¹⁷⁹ Taking those allegations as true, courts concluded they stated a clear violation of the First Amendment.

At summary judgment, defendants substantially prevailed on their qualified immunity motions, winning 72% (26/36) of time, place, and manner claims, 62% (33/53) of retaliation claims, and 55% (11/18) of claims challenging protest policing methods. Again, there were a couple of exceptions. Defendants were granted qualified immunity as to only 44% (11/25) of claims involving content-based speech regulations and won only 50% (10/20) of motions relating to claims involving access to public property. This may reflect the fact that the law in both areas is longstanding and relatively clear. As discussed, under the First Amendment, laws or regulations based on content face a heavy presumption of invalidity. Similarly, protesters have a presumptive right to access certain public properties including public parks, streets, and sidewalks.

iii. First Amendment Law and Protesters’ Rights

The numbers paint an important, if only partial, picture when it comes to application of qualified immunity doctrine in First Amendment cases. The study was also designed to identify and critically analyze the substantive law that has developed—or failed to develop—during application of qualified immunity doctrine. The law that matters most is controlling authority in a specific jurisdiction. However, using a qualitative assessment, we can get a more general sense of the development of substantive standards concerning protesters’ First Amendment rights. The assessment that follows relies primarily on published appellate court decisions but, when useful in terms of filling some gaps, also considers published district court decisions.

Although retaliation claims were the most common in the Qualified Immunity dataset, the core First Amendment rights of protesters relate to access to public properties and the application of content neutrality standards there. Protesters rely on access to public forums such as public streets, parks, and sidewalks, as well as other public properties, to organize and participate in public demonstrations, rallies, and other events.

In public forum qualified immunity cases, several courts treated arbitrary, broad, and effective denials of access to public fora as First Amendment violations.¹⁸⁰ They also held that precedents clearly established protesters’ rights to distribute pamphlets and have access to an audience in a public forum,¹⁸¹ engage in peaceful residential picketing,¹⁸² protest on private property with the owner’s consent,¹⁸³ be present on State House grounds after 6:00 p.m.,¹⁸⁴ and engage in non-disruptive activity on a public sidewalk adjacent to a public school.¹⁸⁵

However, appellate courts upheld several bans on protest in government properties other than public streets, parks, and sidewalks.¹⁸⁶ In addition, they concluded the following actions did not violate clearly established First Amendment rights to access public properties:

Enforcing an invalid permit ordinance that violated the First Amendment, on the ground that the officer was entitled to rely on the ordinance;¹⁸⁷
Excluding a protester from state courthouse grounds and lands, because the “right of access to judicial proceedings” was not clearly established at the time;¹⁸⁸
Arresting a protester for refusing to move a rally from the sidewalk adjacent to Liberty Bell Center in Independence National Historic Park, because it was not clearly established at the time that the sidewalk was a public forum;¹⁸⁹
Promulgating and enforcing a curfew, since protestors did not have a clearly established right under the First Amendment to continuously occupy a plaza on state capitol grounds for an indefinite time;¹⁹⁰ and
Denying a state university student’s request to set up a table in the patio area outside the student union, since the right to access such space was not clearly established.¹⁹¹

As one might expect based on qualified immunity doctrine, the forum access precedents allow protesters to hold officials liable for egregious restrictions, including flat bans on access to traditional or quintessential public fora. However, they also permit officials to enforce otherwise unconstitutional permit requirements and exclude protesters from important venues on the ground that there is insufficient controlling authority addressing access to those places or no reasonable official would know this violated the First Amendment.

According to the decisions, it is difficult for protesters to prove a clearly established right to access a property unless that same property has been previously declared a public forum for First Amendment purposes. But when courts rely on the absence of controlling authority with respect to a public place, they fail to develop forum law. This is part of qualified immunity’s “vicious cycle.”¹⁹²

Protesters also rely on courts to enforce content neutrality rules in public places. The data suggest they have done so unevenly and inconsistently. The Supreme Court has admonished lower courts not to define constitutional issues at a high level of generality but to rely only on controlling precedent.¹⁹³ Nevertheless, in some contexts, courts applied general doctrinal rules to deny qualified immunity. In these instances, failure to follow the Court’s instructions benefitted protester plaintiffs.

For example, courts relied on the general principle that content-based regulations of expression violate the First Amendment. Based on that principle, they held that forcing abortion protesters to vacate a public sidewalk based on the content of their signs or arresting someone for, without more, burning an American flag violated clearly established First Amendment rights.¹⁹⁴ They also concluded, again based on general standards forbidding content-based speech regulations, that public university officials cannot prohibit student protests because of the content of their message and law enforcement officers violated the First Amendment when they made no serious effort to quell hecklers before shutting down a public protest.¹⁹⁵ Similarly, appellate courts held that it is clearly established that protesters cannot be arrested for communicating protected profanity.¹⁹⁶ Finally, one appeals court held that protesters cannot be arrested for engaging in an unusual form of dissent, on the ground that the First Amendment “protects bizarre behavior.”¹⁹⁷

By contrast, when courts followed qualified immunity law to the letter, they frequently upheld government actions that violated content neutrality rules. In several cases courts concluded defendants were entitled to qualified immunity even though they adopted or enforced content-based regulations. For example, courts held that the following actions and regulations did not violate clearly established First Amendment law:

Ordering anti-abortion activists displaying fetuses near a middle school to disperse under a law prohibiting disruptive presence at schools;¹⁹⁸
Arresting protesters for demonstrating publicly in thong underwear;¹⁹⁹
Arresting the driver of a truck who painted words on the side of his truck indicating he was “a fucking suicide bomber communist terrorist!” with “W.O.M.D. on Board”;²⁰⁰
Excluding a protester from a welcoming ceremony authorized by U.S. Senate resolution for carrying a sign objecting to the intended disposition of Olympic dormitories for correctional purposes;²⁰¹
Preventing a journalist from engaging with a counter-protester, under threat of arrest, at a public library children’s book reading event called “Drag Queen Story Hour”;²⁰² and
Excluding protesters from an official speech on private property because of the viewpoint of a message displayed on a bumper sticker on their car.²⁰³

In these instances, courts did not apply general content neutrality principles. Instead, they required that protesters identify controlling authority with facts similar or identical to those in the case under review—a case (or two) involving protesters in thong underwear or messages on bumper stickers, for example. With respect to novel claims, or at least claims courts viewed as such, they were quite strict about application of qualified immunity standards. To be fair to lower courts, even the Supreme Court has sometimes equivocated on the content neutrality point in the context of protests. The Court held in one case that it was not clearly established that Secret Service agents bore a responsibility to ensure that protest groups with different viewpoints had access to comparable locations during a presidential visit.²⁰⁴ Even so, looking for precedential twins and dead ringers in highly context-specific protest cases led courts to uphold qualified immunity.

Protesters’ speech and assembly rights are substantially affected by the enforcement of time, place, and manner regulations. Here, too, the data show very mixed success for protester plaintiffs. In several cases challenging time, place, and manner restrictions, courts concluded protesters had either not alleged or adduced evidence of a First Amendment violation.²⁰⁵ In others, courts concluded that the applicable law concerning time, place, and manner was not clearly established:

The Fourth Circuit held that a reasonable officer could have believed, in 2005, that prohibiting an abortion protester from displaying large, graphic signs depicting aborted fetuses at a major intersection was lawful because case law from the Fourth Circuit and Supreme Court was ambiguous on that issue.²⁰⁶
The Ninth Circuit concluded that denial of protestors’ application for a march permit without a promise on protestors’ part not to engage in civil disobedience was unlawful, but the condition did not violate clearly established First Amendment rights under controlling circuit and Supreme Court precedent.²⁰⁷
The D.C. Circuit held that a reasonable police officer could have believed that, given its proximity to the Capitol, a protest on the East Front sidewalk of the U.S. Capitol was subject to different First Amendment standards than apply in similar public properties.²⁰⁸ The court also agreed with the government’s assertion that because narrow tailoring is “ ‘not an exact science,’ a reasonable officer should not be expected to perform that analysis prior to arresting an individual for violating a time, place, and manner restriction governing expressive activity in a public forum.”²⁰⁹

As critics of qualified immunity doctrine have complained, in determining whether the law of time, place, and manner was clearly established, some courts engaged in factual parsing and line-drawing. For example, the Ninth Circuit concluded that relegation of a public prayer event to a “First Amendment area” burdened the plaintiffs’ speech to a substantially greater degree than necessary to achieve the government’s purposes.²¹⁰ However, the court held officials were entitled to qualified immunity because the relevant case law indicated that time, place, and manner doctrine, in particular the narrow tailoring requirement, distinguished between claims that an audience is essential to the message being conveyed and claims that location was essential for that purpose.²¹¹ Since plaintiffs were challenging the regulation based on locational as opposed to audience proximity, the court reasoned, a reasonable official would not have had sufficiently clear legal guidance to avoid violating the plaintiffs’ First Amendment rights.²¹² The Ninth Circuit’s “narrow tailoring” analysis highlights a central challenge plaintiffs face in terms of identifying clearly established law.

Protesters also brought First Amendment challenges to various protest policing methods, including issuance of unlawful dispersal orders, use of less-lethal weapons during protest events, and surveillance of protest groups. The Eleventh Circuit held that using cordons or barriers that prevent protesters from being seen or heard by anyone violates the First Amendment.²¹³ Several courts held that arbitrary dispersals of otherwise lawful public protests violate clearly established First Amendment law.²¹⁴ Courts also concluded that deploying tear gas and other less-lethal munitions against protesters who are not engaging in any illegal activity is unconstitutional.²¹⁵ Finally, the Ninth Circuit held that government officials violated clearly established First Amendment law when they conducted an eight-month investigation into a vocal, but entirely peaceful group.²¹⁶

However, results changed dramatically if courts discerned even an inkling of disruption or potential for violence at a public protest. In that event, they were far more likely to give law enforcement the benefit of the doubt in terms of protest-policing methods. For example, courts held that confiscating signs at demonstrations, using tear gas against protesters blocking egress from an industrial plant, arresting protesters who refused law enforcement directives to use a “free speech zone,” and making preemptive arrests did not violate the First Amendment or did not violate clearly established law.²¹⁷ In sum, while peaceful and compliant protesters were successful in pursuing challenges to protest policing methods, evidence or even allegations of disruption or potential for violence made success far less likely.

As noted earlier, the most frequently pursued First Amendment claim was that officials unlawfully retaliated against protesters for engaging in protected speech and assembly.²¹⁸ Lower federal court decisions in the Qualified Immunity dataset did not produce much law concerning First Amendment retaliation claims. Retaliation claims often turn on the motive of the defendant, thus making them poor vehicles for establishing bright line rules.²¹⁹ They are also fact-dependent in other ways.

In a typical case, the Eighth Circuit held that when protesters moved toward officers “in a threatening manner” and blocked traffic, “[a] reasonable officer could conclude that this conduct violated Minnesota law and was not protected speech.”²²⁰ Further, the court concluded that since there was no evidence the protesters had been singled out while other similarly situated speakers had not been arrested, “[t]he only reasonable inference supported by the record is that the group’s unlawful conduct, not the protected speech, motivated the officers’ actions.”²²¹

Nevertheless, a few retaliation decisions produced intriguing results. In one case, a district court held that retaliating against protesters for their speech by surveilling them and pointing a red laser from a sniper rifle at a group member during a speech violated the First Amendment.²²² In an unpublished decision, the Ninth Circuit concluded that a reasonable official would know that directing a train into the path of demonstrators, one of whom lost his legs as a result, to stop a protest violated the First Amendment.²²³ In these decisions, at least, the courts did not point to any prior precedent with similar facts. Perhaps when the facts are so egregious, courts are willing to bend the clearly established standard.

Finally, courts addressed claims that officers violated the First Amendment when they interfered with or prevented the recording of officers as they engaged in protest policing. As Joanna Schwartz has observed, “[c]oncerns that the Court’s qualified immunity jurisprudence renders the Constitution hollow are even more acute for constitutional claims involving new technologies and techniques.”²²⁴ Several courts have held that there is a First Amendment right to record police at a public protest and that right is clearly established.²²⁵ However, other courts have held that at the time of the alleged violation, the right to record was not clearly established or not apparent to all reasonable officers.²²⁶ Courts have also observed that the right is not unlimited, and that arresting protesters for recording officers in ways that interfere with their duties does not violate clearly established law.²²⁷

In sum, First Amendment decisions in the Qualified Immunity dataset demonstrate many of the pathologies of qualified immunity doctrine. While courts have held that egregious forms of governmental abuse can be the basis for a claim under section 1983, they have also upheld qualified immunity in cases involving denial of access to public fora, content discrimination, and questionable time, place, and manner regulations. Courts have applied the doctrine inconsistently, sometimes relying on general principles and in other instances demanding precise controlling authority.

We also learned that although wholly peaceful and compliant protesters can pursue claims for damages, at the first sign of disruption or potential violence, courts deferred to officers’ choice to use aggressive protest policing methods. In terms of retaliation, government actors probably cannot mow down demonstrators with a train—although the only opinion on this matter is unpublished and is not controlling authority concerning other types of conveyances. Again, in instances in which the facts are truly egregious, courts may apply the qualified immunity standard more flexibly. Finally, the cases indicate that not all appellate courts have concluded that there is a clearly established First Amendment right to record police at demonstrations.

3. Fourth Amendment Claims

The Qualified Immunity dataset includes court decisions in which 215 Fourth Amendment claims were the subject of defense qualified immunity motions. Although the data support some clear limitations on governmental actions under the Fourth Amendment in the protest context, they also demonstrate an overall lack of substantive development.

i. Types of Claims

Figure 7 shows the most common Fourth Amendment claims plaintiffs pursued in the cases in the Qualified Immunity dataset. The general standards governing these 215 Fourth Amendment claims are well-established.

Figure 7. Types of Fourth Amendment Claims

The Fourth Amendment protects the “right of the people to be secure in their persons . . . against unreasonable searches and seizures.”²²⁸ To prevail on a claim for false arrest, a plaintiff must demonstrate that officers lacked probable cause to make the arrest. Probable cause to arrest exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.²²⁹ The existence of probable cause to arrest, even for a very minor offense, is a complete defense to a Fourth Amendment false arrest claim.²³⁰

In an excessive force claim, a plaintiff must show that the use of force was excessive under the facts and circumstances presented.²³¹ In making this determination, the Supreme Court has instructed lower courts to pay “careful attention” to factors such as “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”²³² As the Court has emphasized, “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”²³³

Finally, a seizure of the person occurs “when there is a governmental termination of freedom of movement through means intentionally applied.”²³⁴ To be valid under the Fourth Amendment, a seizure or detention must be reasonable under the circumstances. Under the Fourth Amendment, an officer may seize an individual’s property from a public area “only if Fourth Amendment standards are satisfied—for example, if the items are evidence of a crime or contraband.”²³⁵ Officers may also conduct searches incident to arrest when they have reasonable suspicion contraband is present.²³⁶

ii. Claims Disposition Data

The success rates for defense motions to dismiss or for summary judgment based on qualified immunity are shown in Figure 8. The same caveats that applied to determining successful disposition of defense motions respecting First Amendment claims apply to Fourth Amendment claims. The findings count granted motions to dismiss and for summary judgment, and appellate court rulings upholding those grants as successful whether or not plaintiffs amended their complaints or their claims were considered on remand after appeal. The success rates are, as indicated, snapshots of dispositions in reported decisions available on Westlaw.

Figure 8 shows that, like the First Amendment claims in the dataset, two-thirds or more of Fourth Amendment claims survived defense motions to dismiss. By contrast, at summary judgment, courts were much more inclined to grant or uphold qualified immunity for defendants for false arrest (61% or 48/79 claims) and unlawful search or seizure (71% or 15/21 claims).

Figure 8. Q.I. Motion Success Rates by Fourth Amendment Claim

As discussed earlier in the general data findings, when addressing qualified immunity respecting Fourth Amendment claims, courts were more likely to grant immunity at Step One. In those instances, courts held that no violation had occurred, instead of concluding that there was a lack of clearly established law at Step Two.²³⁷ As we have seen, courts were overall likely to grant defense motions for summary judgment. But the high rate of summary judgment for false arrest and unlawful search and seizure claims likely also reflects the deferential probable cause and reasonableness standards that apply to such claims.

The exception was defense motions for summary judgment on excessive force claims, which succeeded only 42% (19/45) of the time. As discussed below, several courts held that law enforcement uses of force against peaceful assemblies or compliant protesters constituted clear Fourth Amendment violations.²³⁸ In other cases, courts concluded that the degree or amount of force used against protesters violated clearly established Fourth Amendment standards.²³⁹ These decisions account for the lower defense success rates regarding excessive force claims at summary judgment.

iii. Fourth Amendment Law and Protesters’ Rights

Substantive Fourth Amendment law in the context of public protest has developed slowly in lower courts. Like the discussion of First Amendment law, the following analysis focuses primarily on published federal courts of appeals decisions to assess what substantive Fourth Amendment law has been established. However, it also considers district court decisions that apply circuit precedents in Fourth Amendment qualified immunity determinations.

Appellate courts consistently held that arresting protesters without actual or arguable probable cause violated clearly established Fourth Amendment law.²⁴⁰ They also concluded that it is a clear violation of the Fourth Amendment to arrest protesters without first issuing a dispersal order (although one district court held that officers are under no obligation to determine whether the order is lawful prior to enforcing it).²⁴¹ Notwithstanding these limits, courts applied a flexible probable cause standard and upheld arrests for various offenses, some very minor—using noise amplification near an abortion clinic,²⁴² falling asleep in a zipped tent in a public park,²⁴³ openly carrying firearms on a public fishing pier,²⁴⁴ burning the Mexican flag in public without a permit,²⁴⁵ and unfurling a banner outside a designated “speech zone.”²⁴⁶

Fourth Amendment law is unsettled when it comes to the validity of protesters’ arrests for engaging in protected expression. The Eighth Circuit held that arresting protesters solely for engaging in protected speech violates clearly established Fourth Amendment rights.²⁴⁷ Similarly, the Sixth Circuit held that the law was clearly established that a county fair patron could not be arrested for disorderly conduct based on his spewing profanities at police and a fairgrounds executive director when he was being escorted off the fairgrounds (apparently for wearing a shirt stating “Fuck the Police”).²⁴⁸

However, a federal district court applying circuit law concluded that officers who arrested a protester for anonymous comments made by others on his livestream after he posted the Chief of Police’s address did not violate clearly established Fourth Amendment law.²⁴⁹ Another district court held that officers did not act recklessly, negligently, or unreasonably in relying on a fellow officer’s determination that probable cause existed to arrest a protester for walking along the public sidewalks displaying “a gigantic Styrofoam middle finger emblazoned with the letters ‘Fuck cops.’ ”²⁵⁰ A district court also held that officers did not violate clearly established Fourth Amendment law when they arrested a protester for “interference” when he refused to relinquish a camera—something he otherwise had a right to possess under the circumstances—when ordered to do so.²⁵¹

As these decisions demonstrate, probable cause reasonableness standards make it difficult for courts to develop clearly established law concerning false arrest. As in other areas, egregious mass arrests and other actions not supported by any probable cause have been condemned as violating clearly established Fourth Amendment law. However, precedents show that even arrests closely related to, if not directly based on protected expression, have been the basis for qualified immunity for Fourth Amendment claims. The absence of precedents addressing similar or nearly identical circumstances has prevented courts from recognizing some clear constitutional violations.

In terms of excessive force claims, courts have consistently held that using less-lethal force, such as pepper spray and tear gas, against compliant and peaceful protesters violates clearly established Fourth Amendment law.²⁵² The same goes for using other types of force when arresting or subduing a compliant protester.²⁵³ Driving a train into a crowd of peaceful demonstrators may constitute excessive force, although the only decision reaching that conclusion is unpublished.²⁵⁴

However, as was true of some First Amendment claims, excessive force results sometimes hinged on whether the protest was wholly peaceful and non-disruptive. Courts held that the use of less-lethal munitions to disperse violent or unruly protests, tasing protesters in the context of “hostile” protest environments, and even kicking or choking protesters who refused to comply with officers’ commands did not constitute excessive force under the Fourth Amendment.²⁵⁵

Several district courts also rejected excessive force claims concerning the use of handcuffs or zip ties so tight they caused physical injuries to protesters. In some cases, courts reasoned that under circuit precedent, only force sufficient to break a person’s wrist violated clearly established Fourth Amendment law.²⁵⁶ The handcuffing/zip tie decisions demonstrate how the requirement that plaintiffs identify controlling precedent with the same facts undermines constitutional rights and prevents plaintiffs from being compensated for injuries. Absent a particular circuit court or Supreme Court decision (or perhaps more than one) holding that inflicting pain through bindings short of breaking the person’s wrist violates the Fourth Amendment, a protester plaintiff cannot recover even for serious injuries.

Several decisions in the Qualified Immunity dataset addressed the law as it relates to seizures under the Fourth Amendment. Some courts have held that warrantless seizures of protesters’ signs and other possessions violated the Fourth Amendment.²⁵⁷ By contrast, when officers had probable cause to believe the item was unlawful, or reasonable suspicion it could be dangerous, courts have upheld seizures of items including shofars and firearms.²⁵⁸ The fact that a shofar could “reasonably” be considered dangerous highlights the deference officers enjoy under Fourth Amendment cause and suspicion standards.

District courts applying circuit precedents disagreed concerning whether law enforcement uses of less-lethal weapons such as tear gas, pepper spray, and projectiles constituted “seizures” under the Fourth Amendment.²⁵⁹ Some decisions suggested that the answer turns on whether the protester’s movement was otherwise constrained, which implies that the use of less-lethal munitions by itself does not constitute a “seizure.”²⁶⁰ Other courts expressly held that the use of tear gas and other munitions can constitute a “seizure.”²⁶¹ At present, there is a lack of consensus or appellate authority on this important issue.²⁶²

Courts have also upheld brief detentions and searches incident to detention during public protests.²⁶³ They considered such actions justified as means of maintaining public safety and order. In some decisions, courts again relied on narrow factual distinctions relating to the detentions in determining whether they violated clearly established law. For example, although prior precedents in a circuit had established that a two-hour detention in which the plaintiff was handcuffed and detained in the back of a police cruiser was an unlawful seizure, a district court observed that in the case before it, protesters were not handcuffed, were not placed in the back of police vehicles, and were released after approximately one hour.²⁶⁴ Thus, the district court held, circuit precedents did not make clear to “every reasonable official” that detaining witnesses to a crime, without handcuffs and without moving them to a police vehicle, violated the Fourth Amendment.²⁶⁵

Fourth Amendment qualified immunity decisions exhibited some of the same pathologies as First Amendment decisions. While courts condemned some egregious law enforcement practices, they declined to recognize others as violations of clearly established law. Courts relied on narrow factual distinctions and the absence of controlling authority. Together the decisions have resulted in a largely under-developed law of public protest in the Fourth Amendment area.

B. Municipal Liability – Monell Claims

The Qualified Immunity dataset also collected information about plaintiffs’ claims against municipal defendants. Recall that to successfully hold a municipal defendant liable under section 1983, plaintiffs must demonstrate that the municipality directly violated their constitutional rights by, among other things, adopting and enforcing an unconstitutional “policy or custom.”²⁶⁶ In order to sue the municipality, plaintiffs must demonstrate that an official has violated their constitutional rights because of the municipal policy or custom.²⁶⁷

As shown in Figure 9, defendants were not successful at the motion to dismiss stage, as courts granted or upheld only eighteen of seventy-five (24%) dismissal motions. However, once cases reached the summary judgment stage, defendants were remarkably successful: 78% (113 out of 145) of municipal defendants’ motions for summary judgment were granted or upheld on appeal. Thus, although courts were inclined to allow plaintiffs to pursue discovery on Monell claims, they were overwhelmingly rejected at summary judgment.

Figure 9. Defense Motion Success Rates for Monell Claims

The data show that in most instances, municipal liability was rejected, owing to a lack of evidence of a “policy or custom.” Courts also frequently relied on a lack of underlying constitutional violation and plaintiffs’ failure to identify a policymaking official who acted in a manner that violated their constitutional rights.

Although municipalities represent deep financial pockets and are responsible for making law enforcement and other policies, the data confirm that Monell claims are among the most difficult for plaintiffs to pursue. Defendants’ efforts to defeat these claims were largely successful.

C. First Amendment Retaliation Claims

As discussed earlier, in Nieves, the Supreme Court adopted a probable cause standard for determining whether plaintiffs could bring a First Amendment retaliation claim.²⁶⁸ It also recognized a narrow exception for plaintiffs who could demonstrate they had been subject to unequal treatment. Concurring and dissenting Justices sounded various alarms about the Court’s reliance on probable cause. In general, the Retaliation Claim dataset, which includes all public protest retaliation claims subject to the Nieves standard, supports the dissenters’ objections and concerns.

A significant concern is that law enforcement officers possess broad discretion to charge protesters with even minor public disorder offenses. Under Nieves, an officer who can show a protester’s arrest for disorderly conduct, breach of peace, or other minor crimes is likely to have a complete defense to a First Amendment retaliatory arrest claim. As Justice Gorsuch observed in his partial dissent:

History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively. In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age. The freedom to speak without risking arrest is ‘one of the principal characteristics by which we distinguish a free nation.’²⁶⁹

Justice Gorsuch noted an additional shortcoming of the majority’s approach. When it folded the free speech claim into the unreasonable arrest inquiry, he asserted, the Court made a category error. As Justice Gorsuch explained, “the First Amendment operates independently of the Fourth and provides different protections. It seeks not to ensure lawful authority to arrest but to protect the freedom of speech.”²⁷⁰ By hanging so much on probable cause to arrest protesters and other speakers, the Court elided important free speech claims and interests.

In her dissent, Justice Sotomayor took aim at the exception to the Nieves rule, which requires protesters to produce “objective evidence that [they were] arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”²⁷¹ She characterized the exception as unclear and irrational and argued it will lead to perverse results. Which protesters, she asked, are “otherwise similarly situated” to the plaintiff, and who is engaged in the “same sort of protected speech”?²⁷² Further, under the Court’s approach, protesters who have more direct evidence of retaliatory motive, including officers’ own statements, cannot rely on that evidence, but must instead produce hard-to-come-by comparison-based evidence.²⁷³

Justice Sotomayor surmised that plaintiffs who can satisfy the Nieves exception “predominantly will be arrestees singled out at protests or other large public gatherings, where a robust pool of potential comparators happens to be within earshot, eyeshot, or camera-shot.”²⁷⁴ However, she failed to consider that even those plaintiffs would be hard-pressed to gather such evidence in chaotic mass protest environments. Among other complications, during mass protests, ideological and other affiliations can be difficult to discern. Moreover, the exception incentivizes protest policing activities that data show to be already prevalent, including “herding” or “kettling” all participants regardless of specific offense, using tear gas and other force indiscriminately, and engaging in mass arrests. No officer can be accused of singling anyone out if everyone is subject to the same dragnets and other abuses. For a few reasons, there will, as Justice Sotomayor warned, be “little daylight between the comparison-based standard the Court adopts and the absolute bar it ostensibly rejects.”²⁷⁵

Finally, Justice Sotomayor worried that the majority’s approach would “breed opportunities for the rare ill-intentioned officer to violate the First Amendment without consequence—and, in some cases, openly and unabashedly.”²⁷⁶ For example, “a particularly brazen officer could arrest on transparently speech-based grounds and check the statute books later for a potential justification.”²⁷⁷ She and the other dissenters might also have raised the possibility that racial disparities in protester arrests might affect First Amendment retaliation claims.²⁷⁸

The Retaliation Claim dataset confirms many of the dissenters’ objections and concerns. Counting Nieves itself, there have been forty-one federal court decisions that applied the probable cause defense in protest-related cases. In twenty-seven of those decisions, or more than 65%, courts granted defendants’ motions to dismiss or for summary judgment with respect to First Amendment retaliation claims. An “absolute bar” may not have materialized. However, thus far, post-Nieves retaliation claims have not fared well at all in reported decisions. Courts granted or upheld dismissal at the pleading stage 56% of the time (10/18) and granted summary judgment to defendants 74% (17/23) of the time.

Table 3. Defense Motions in Post-Nieves Retaliation Cases
Posture	Motion Granted	Motion Denied	Total
MTD	10 (56%)	8 (44%)	18
SJ	17 (74%)	6 (26%)	23

The nature of the charges underlying dismissal or summary judgment substantiates Justice Gorsuch’s concern that “criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something.”²⁷⁹ The criminal charges that ultimately defeated First Amendment retaliation claims included disorderly conduct (6), trespass (5), failure to disperse (4), disturbing the peace (3), violation of a curfew order (2), obstructing vehicular or pedestrian traffic (3), obstructing government functions (1), and jaywalking (1). As Justice Gorsuch predicted, probable cause to arrest protesters for even very minor or trivial offenses was enough to defeat the retaliation claims.

What about the exception based on evidence of unequal treatment? Courts addressed the exception on the merits in only 24% (10/41) of cases. In six of those decisions (60%), courts concluded there was insufficient evidence of unequal treatment or that the plaintiff was not “similarly situated” to the comparator class. In three decisions, courts concluded there were sufficient allegations or evidence of disparate treatment to defeat defendants’ motions to dismiss or for summary judgment. In one decision, the court concluded that the plaintiff had produced evidence that “similarly situated” speakers had not been arrested under the narrow exception Nieves recognized.²⁸⁰ In that case, plaintiffs demonstrated that no one had ever been arrested for the offense (chalking public property).²⁸¹

The post-Nieves results suggest courts are engaging in a wooden application of the probable cause standard, rather than a “commonsensical[]” analysis.²⁸² They have generally been willing to accept officers’ claims that arrests for minor offenses were reasonable under the circumstances, a conclusion that in most cases defeated protesters’ First Amendment retaliation claims.

Review of post-Nieves decisions also supports other criticisms. Justice Gorsuch criticized the majority opinion in Nieves for failing to recognize the First Amendment and Fourth Amendment as independent sources of rights.²⁸³ As he predicted, Nieves has encouraged lower courts to focus on the legitimacy of the arrest to the exclusion of free speech, press, and assembly concerns.²⁸⁴ While courts have been hyper-focused on probable cause to arrest, they have had little to say about the effects of the arrests on collecting petition signatures, public preaching and singing, videorecording protest arrests, and participation in protests involving LGBTQ rights, Occupy Wall Street, the Dakota Access Pipeline, Black Lives Matter, Juneteenth, and the removal of Confederate monuments.

The data do not provide a basis for assessing Justice Sotomayor’s concern about rogue officers suppressing speech. However, post-Nieves decisions have dismissed retaliation claims in which protesters were arrested while singing anti-LGBT songs, confronting public officials at public events, and videotaping protest policing. In these and other cases, there is at least the possibility that officers have targeted or suppressed speech based on its content.

Finally, commentators have warned that Nieves may have negative effects on newsgatherers.²⁸⁵ Even if reporters have a First Amendment right to record government officials at public demonstrations, the decisions show that probable cause to arrest reporters for some minor offense may effectively negate press rights by allowing officials to target newsgatherers.

Prior to Nieves, the Supreme Court recognized another possible exception to the probable cause requirement. If a municipality adopts an official policy of retaliation against a speaker or group, the Court held, it may be held liable even if there is probable cause to arrest the speaker.²⁸⁶ Assuming this exception survives Nieves, it applies only in exceptional situations when a governmental body adopts a policy of retaliating against an individual or group for protected expressive activities.²⁸⁷

The Retaliation Claims dataset suggests plaintiffs are not likely to pursue this type of claim. Only five of the forty-one decisions (12%) addressed such a claim. Three claims were dismissed for failure to allege or provide sufficient evidence of a policy or custom of retaliation or failure to establish an underlying constitutional violation.²⁸⁸ One district court concluded that the plaintiff had alleged sufficient facts in the complaint to demonstrate a policy or custom of retaliation or harassment.²⁸⁹ Another district court concluded genuine issues of material fact concerning whether a defendant had final policymaking authority precluded summary judgment on the municipal retaliation claim.²⁹⁰

Lower courts have not had much time to adjust to and apply the Nieves standard. However, evidence indicates that concerns about how the probable cause and other aspects of the decision will be applied have already surfaced in early cases.

D. Claims Against Federal Officials

As discussed, the Supreme Court has never formally recognized a First Amendment claim under Bivens for monetary damages against federal officials.²⁹¹ Recent decisions have expressed general skepticism concerning Bivens claims and rejected certain types of claims under the First Amendment and the Fourth Amendment.²⁹² The twenty-six decisions included in the Bivens Claims dataset suggest that while lower courts have long recognized protest-related claims against federal officials, the Supreme Court’s recent decisions have placed such claims in jeopardy.

The data show that lower courts have long recognized protesters’ ability to pursue First Amendment and Fourth Amendment Bivens claims. Courts recognized a cause of action for First Amendment or Fourth Amendment violations against federal defendants under Bivens in 81% (21/26) of protest-related decisions.

However, twelve, or nearly half, of these decisions are from the D.C. Circuit and D.C. district courts. The D.C. Circuit first recognized a First Amendment protest-related Bivens claim in Dellums v. Powell, which was decided in 1977.²⁹³ The District of Columbia is the site of iconic protest venues, including the grounds near the U.S. Capitol and Lafayette Park near the White House. National Park Service, U.S. Marshals officials, U.S. Capitol Police, Secret Service, and other federal officials are involved in policing and managing mass and other protest events in the District.

In addition to the D.C. Circuit, the Third, Fourth, Eighth, Ninth, and Tenth Circuits have also recognized First Amendment and Fourth Amendment Bivens claims in protest-related cases.²⁹⁴ Constitutional claims in these cases have run the gamut from violation of protesters’ right to speak and assemble in a public forum under the First Amendment to allegations of excessive force, false arrest, and unreasonable seizure under the Fourth Amendment. One might assume decisions recognizing these Bivens claims long predated the Court’s recent turn against expanding Bivens. However, ten out of fifteen lower court decisions (67%) recognizing such claims or assuming they are viable were decided during the last decade, when the Court was expressing increasing skepticism about them.

There is some evidence that the Court’s Bivens negativity is starting to affect lower court decisions in protest cases. In the four most recent decisions, including one by the D.C. Circuit regarding the clearing of Lafayette Park during the 2020 Black Lives Matter protests, courts expressly rejected protesters’ First Amendment and Fourth Amendment Bivens claims.²⁹⁵ The courts emphasized the Supreme Court’s admonition not to expand Bivens into “new” contexts and to apply a “special factors” analysis to prevent expansion of Bivens claims. Applying those standards, only one recent federal district court decision has upheld a protest-related Fourth Amendment claim and none have recognized a First Amendment claim.²⁹⁶

The loss of a Bivens remedy would leave protesters without full recourse against federal officials who violate their First Amendment or Fourth Amendment rights. Officials with the National Park Service, Secret Service, and other federal agencies would be immunized from damages claims. As the 2020 racial justice protests demonstrated, holding federal officials liable for protest policing that violates individuals’ constitutional rights remains critically important.

IV. STRENGTHENING PROTESTER RIGHTS AND REMEDIES

This study confirms that protesters face steep obstacles in terms of holding government officials accountable for constitutional injuries. If protesters cannot be made whole in the event of serious injuries, they may be deterred from organizing and participating in public demonstrations. Thus, what is at stake is not just the important compensation owed to injured protesters but also broader injuries to our culture of public dissent. This final Part offers five proposals to strengthen protesters’ rights and remedies.²⁹⁷

First, as other scholars have advocated, qualified immunity should be abandoned or reformed.²⁹⁸ This study confirms that courts are disposing of a significant percentage (approximately 60% at summary judgment) of protesters’ First Amendment and Fourth Amendment claims based on qualified immunity. The data also show that qualified immunity shields officials from liability in all but the most egregious cases (and even in some egregious cases), is based on an impossibly narrow standard of controlling authority and reduces opportunities for courts to innovate and develop substantive law. The Court or Congress should abolish qualified immunity or reform it by, for example, changing the liability standard or doing away with the “clearly established law” requirement.²⁹⁹ Protesters and others would then be better able to recover for patently unconstitutional content-based regulations, abusive uses of force, invalid arrests, and other unconstitutional behavior.

Second, also in the realm of qualified immunity reform, the Supreme Court or Congress should revisit Nieves v. Bartlett. This study shows that First Amendment retaliation claims are frequently pursued in protest cases. Early lower court applications of Nieves’s probable cause rule confirm the objections raised by Justices Gorsuch and Sotomayor. The Supreme Court should at least clarify that probable cause is not an absolute bar to retaliation claims. Some commentators have also urged Congress to overturn Nieves.³⁰⁰ If neither institution is willing to act, civil rights lawyers will need to focus on collecting the necessary evidence of disparate treatment to defeat the probable cause bar. As Justice Sotomayor has urged, lower courts can also adopt a “commonsensical[]” interpretation of the standard.³⁰¹

Third, as this study confirms, courts need to strengthen constitutional protections under the First Amendment and Fourth Amendment. The lack of strong First Amendment and Fourth Amendment rights reduces and undermines protesters’ constitutional protections. Applications of qualified immunity doctrine show that First Amendment doctrines allow officials to exclude protesters from public properties, enforce restrictive speech zones, and significantly displace demonstrations. Joanna Schwartz has criticized substantive Fourth Amendment law, specifically the “reasonableness” standard that allows officers to “stop, arrest, beat, shoot, or kill people who have done nothing wrong without violating their constitutional rights.”³⁰² Similarly, she argues, the Court’s “excessive force” doctrine has “left officers with few limits on their power.”³⁰³ The First Amendment and Fourth Amendment doctrines addressed in this study are longstanding. However, the Supreme Court should more clearly establish the limits they place on government officials when they regulate protest activity and lower courts should apply these limits in ways that better protect the rights of protesters.

Fourth, and relatedly, courts must publish more decisions elaborating on applications of First Amendment and Fourth Amendment rights. Figure 10 shows the number of published qualified immunity protest-related decisions over time available on Westlaw. The Qualified Immunity dataset covers four decades but includes only eighty-six published federal appellate court decisions. To be sure, there are likely more such decisions; but if they are not accessible, they cannot be used to analyze qualified immunity. If published appellate decisions are to be the primary sources of clearly established law, it is obvious that litigants and courts need significantly more guidance. The uptick in published decisions during the last five years is encouraging, even if it may partially be related to the 2020–2021 mass street protests. More published decisions should produce more clearly established limits on protest policing and other activities. The Supreme Court could also take steps such as loosening the requirement of controlling circuit precedent and allowing courts to consult other decisions or to rely on general principles, rather than requiring plaintiffs to identify in-circuit cases involving the same or similar factual circumstances.

Figure 10. Published Qualified Immunity Protest Decisions over Time

Fifth, and finally, governmental immunity doctrines must allow injured plaintiffs to hold all parties that cause injuries accountable. This means reducing or repealing municipal immunities and allowing injured protesters to sue federal officials under Bivens for First Amendment and Fourth Amendment violations. In my study, although plaintiffs frequently sued municipalities, nearly 80% of their Monell claims failed at summary judgment.³⁰⁴ As Joanna Schwartz has argued, “[o]ne way to make sure that people are paid what they are owed is to do away with Monell standards and hold cities legally responsible for the constitutional violations of their officers—just as private companies are held vicariously liable for the acts of their employees.”³⁰⁵ Protester plaintiffs must also have the opportunity to hold Secret Service, National Park Service, and employees of other federal agencies accountable. Lower courts have traditionally perceived no impediment to recognizing and adjudicating such claims.³⁰⁶ As some recent decisions demonstrate, the Supreme Court’s negativity regarding Bivens threatens to undermine the fundamental right to express political dissent.³⁰⁷ Although the Supreme Court has not expressly rejected protest-related First Amendment claims against federal officials, it has crept ever closer to doing so. As the Court itself has urged, Congress should codify Bivens by creating civil damages claims against federal officials who violate First Amendment, Fourth Amendment, and other constitutional rights.

CONCLUSION

Governmental immunities have had a profoundly negative effect on public protesters’ ability to obtain compensation for constitutional harms. This study’s quantitative analysis shows defendants’ significant success using qualified immunity to defeat a variety of First Amendment and Fourth Amendment claims. Its qualitative analysis illustrates how application of qualified immunity and other doctrines have defeated protesters’ claims, even when defendants have engaged in egregious constitutional violations.

The study lends additional support to general criticisms of qualified immunity and related doctrines. More broadly, it shows that failure to reform or abolish governmental immunities will affect the right to protest peacefully, safely, and with high confidence that officials who regulate and police protests will respect constitutional rights.

This Article offers several proposals for strengthening protesters’ remedies or at least limiting obstacles to monetary recovery. These include judicial or legislative repeal of qualified immunity, developing stronger substantive First Amendment and Fourth Amendment protections, abandoning municipal liability restrictions, and retaining civil liability for federal officials. Without serious reform, in most cases protesters will continue to be un- or under-compensated, public officials will continue to escape liability, and traditionally valued public protest activity will be encumbered and chilled.

97 S. Cal. L. Rev. 1583

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Timothy Zick*

* John Marshall Professor of Government and Citizenship, William & Mary Law School. I would like to thank Paul Hellyer for his outstanding assistance with the study design and the research supporting this Article. Special thanks also to Rebecca Roberts for her help updating the study databases. Any errors are, of course, my own.

Infringement Episodes

August 2024August 2024Shani Shisha*

For decades, copyright scholars have waged a spirited campaign against statutory damages. Our remedial system, critics say, is an incoherent mess. The core problem is that copyright holders can recover a separate award of statutory damages for every infringed work. As a result, damages can rapidly add up in any case involving multiple works. Because the number of statutory awards is tethered to the number of works, even trivial claims can lead to crippling damages. Commentators, policymakers, and judges have criticized this system as arbitrary and overbroad. And yet it endures.

This Article argues that copyright’s per-work scheme has obscured, and at times eclipsed, a more compelling paradigm of copyright damages—one that attends more closely to the defendant’s course of conduct. This new approach would allow courts to examine whether the defendant’s actions arose out of, and were rooted in, a single infringement episode. By infringement episode, I mean a chain of infringing acts that together constitute a larger factual event. When the defendant’s conduct is traceable to a single episode, courts should issue only a single statutory award—no matter how many works are at stake. This framework, in short, would substitute rigidity for flexibility. It would displace copyright’s one-award-per-work scheme and instead introduce a contextual inquiry into the defendant’s course of conduct. Doing so can mitigate the risk of outlandish awards, encourage courts to properly calibrate damages, and infuse a degree of much-needed pragmatism into our system.

INTRODUCTION

Copyright scholars have long taken a decidedly dim view of statutory damages. The federal copyright statute entitles plaintiffs to recover statutory damages without proof of harm.¹ But our remedial system, critics say, is an incoherent jumble. Courts wield “virtually unfettered discretion” in assessing damages.² Statutory awards often seem inexplicable or arbitrary.³ Courts are also deeply divided over the justificatory basis for statutory damages. Some believe that statutory damages derive from a compensatory rationale, while others lean more readily on punitive instincts.⁴ And statutory damages sometimes lead to inflated awards that far outstrip any reasonable assessment of harm.⁵ The law of statutory damages is a disaster.

Underlying these pathologies is a peculiar feature of our copyright system: its per-work structure. Copyright holders can recover a separate statutory award for every infringed work.⁶ As a result, statutory damages can add up rapidly in any case involving more than a single work.⁷ In one recent case, copyright holders leveraged this per-work scheme to sue for a breathtaking award of $75 trillion in statutory damages—more than “the combined gross domestic product and national debt of the United States.”⁸ In another notable case, a record label brought action against Jammie Thomas-Rasset, a single mother from Minnesota, for illegally downloading and distributing twenty-four songs.⁹ A jury found the defendant liable and returned an award of $80,000 per infringed song, resulting in a total award of $1.92 million.¹⁰ Stunningly, by some measures, this award was 35,000 times larger than the plaintiff’s actual loss.¹¹

As these examples illustrate, the prospect of outlandish damages is rather startling. Because the number of statutory awards is tethered directly to the number of infringed works, statutory damages can quickly balloon in relatively minor cases. The risk of financial ruin looms large.

Copyright scholars, in turn, have proposed a number of potential reforms.¹² Matthew Sag, for instance, suggests that we reduce or cap the range of available damages in certain file-sharing cases.¹³ Oren Bracha and Talha Syed contend that, at least under a compensatory framework, statutory damages should approximate actual harm.¹⁴ Ben Depoorter contemplates a variety of reforms that would make excessive damages both less likely and less costly.¹⁵ James DeBriyn calls for eliminating statutory damages.¹⁶ Michael Carrier would proscribe recovery of statutory damages in cases involving secondary liability.¹⁷ And Alan Garfield endorses a host of different reforms—interpretive, legislative, and constitutional—to restrict judicial discretion in assessing statutory damages.¹⁸

None of these proposals, however, confront the core issue: the per-work structure of copyright remedies. To meet the urgency of the moment, this Article suggests a legislative reform that would do away with per-work remedies altogether. Instead, I propose that courts police the defendant’s conduct based on a more holistic approach.¹⁹ Our current system encourages courts and juries to engage in a rote exercise of counting infringed works.²⁰ A better framework, I argue, would afford courts greater discretion to assess whether the defendant’s conduct gave rise to, and was squarely rooted in, a single infringement episode. By infringement episode, I mean a chain of related infringing acts that together constitute a larger factual event. When the defendant’s conduct is traceable to a single larger episode, courts should be able to issue only a single statutory award—no matter how many works are at stake. By focusing on infringement episodes rather than the number of infringed works, this approach breaks with copyright’s one-award-per-work system. It substitutes rigidity for flexibility, relying instead on a context-sensitive inquiry into the defendant’s course of conduct. And it offers an alternative analytical paradigm for thinking about copyright remedies.

To operationalize this approach, the Article sketches a richly nuanced account of when and why courts might treat a series of infringing acts as sufficiently intertwined to constitute a single episode.²¹ In particular, I argue that courts should attend to an array of interrelated factors, including the nature of the infringing acts; the time and place of each act; whether the evidence supporting one infringement is necessary or sufficient to sustain liability for another; whether the defendant’s actions were executed in pursuit of a common plan or a larger creative enterprise; and the potential consequences of a statutory award. If adopted, this multifactor framework would allow courts to avoid per-work damages when the defendant’s actions derive from a single infringement episode.

This approach may seem radical. Immersed as we are in a legal culture that prizes per-work awards, it may be difficult to conceive of a better system for assessing damages—one that is both administrable and normatively attractive. But if we want to put an end to excessive awards, we need to get judges and juries out of the business of counting infringed works. The way to do that is through structural reform that would enable courts to scrutinize the defendant’s overarching course of conduct.

The Article also brings this approach into conversation with other legal disciplines.²² Across a variety of seemingly siloed areas of law—criminal law, civil procedure, and immigration law—courts have already fashioned doctrinal tools to evaluate whether a cluster of wrongful acts might be collectively reducible to a single transaction, episode, scheme, or series of occurrences. Typically, courts do so by undertaking a multifactor inquiry into the defendant’s entire course of conduct. Rather than examining every single action in isolation, courts approach the defendant’s conduct from a more holistic perspective. And this framework, subject to a few notable modifications, could be brought to bear on modern copyright law.

Ultimately, this Article seeks to chart a new horizon for copyright remedies. What distinguishes the proposed approach from previous proposals is that it takes seriously the core issue: per-work remedies that allow courts and juries to aggregate damages. After decades of faint-hearted debates, policymakers ought to try something different. If left unabated, copyright’s remedial system will continue to provoke all manner of mischief. It is time to rethink per-work damages in toto.

The argument proceeds in four parts. Part I discusses two of the most contestable aspects of our current system. The first problem is that infringement is principally understood to be a strict liability tort.²³ In other words, liability for copyright infringement does not depend on the infringer’s intent, knowledge, or negligence. Accidental infringement, then, is a very real possibility. The second problem is that copyright owners can elect to recover a separate award of statutory damages for every infringed work.²⁴ Because these awards can range anywhere from $200 to $150,000 per work, there is much at stake.

And when one considers the caselaw, the picture grows darker still. Part II delivers a diagnosis of the central issues surrounding the law of statutory damages. First, courts often disagree over the appropriate justification for statutory damages.²⁵ They vacillate between compensatory, punitive, and deterrence-based rationales, and rarely offer anything more than a threadbare explanation for why one justification is preferable to another. Second, copyright’s remedial scheme tends to produce unpredictable or otherwise arbitrary outcomes.²⁶ Third, statutory damages can lead to grossly excessive awards.²⁷ Due to per-work aggregation, statutory awards can swell up in any case involving more than a single work. Fourth, this per-work structure can discourage courts from properly developing copyright law.²⁸ Because statutory damages attach to infringed works rather than infringed rights, courts have little incentive to systematically address or unpack certain rights. The result is an impoverished body of law.

Part III outlines an alternative framework for assessing damages. It begins by surveying previous reform proposals.²⁹ It next catalogs a range of doctrinal analogues borrowed from other legal disciplines, including criminal law, civil procedure, and immigration law.³⁰ Based on this cross-disciplinary analysis, I then chalk out a more granular account of how courts might go about identifying infringement episodes.³¹ In so doing, I show that the proposed approach can offer a practical blueprint for evaluating the defendant’s conduct in different kinds of cases: file-sharing cases, artistic appropriation cases, and commercial infringement cases.

Part IV considers and rejects a number of potential objections. I defend my use of doctrinal analogues; clarify the scope of this framework by explaining what it can—and cannot—do; and examine how my proposal might ensure that plaintiffs are compensated for the harms they suffered.³² A brief conclusion follows.

I. A TALE OF TWO WOES

Copyright law suffuses our world. An incredible constellation of seemingly mundane activities—emailing, posting photos and videos on social media, texting, and even sharing memes—can give rise to claims of copyright infringement.³³ The result is that copyright “pervades our cultural universe.”³⁴ It has come to “dominate vast swaths of everyday life.”³⁵ As one commentator put it, copyright law “touches everyone and everything.”³⁶

This Section discusses two of the main features that render modern copyright law so permissive. The first is the fundamental nature of our system as a strict liability regime. The second is a unique remedial framework that entitles copyright owners to recover statutory damages without proof of actual harm. These two features strike at the heart of a formidable regime that has grown precariously overbroad. The risk of accidental infringement, coupled with the attendant threat of exorbitant damages, is all but inescapable. Copyright law is a slumbering giant.

A. Strict Liability

In the traditional telling, ours is a strict liability regime. Courts routinely treat copyright infringement as a strict liability tort.³⁷ Scholars take a similar view.³⁸ It is easy enough to understand why. Copyright liability, after all, does not depend on the infringer’s knowledge, negligence, or intent.³⁹ It is simply irrelevant whether the infringer knew that their actions constituted copyright infringement. Liability is not conditioned upon any kind of fault. To establish a prima facie case, the copyright owner need not make a showing of knowledge or negligence on the part of the defendant. Copyright infringement, in short, is a strict liability tort.

But why is that so? One standard answer is that copyright is a form of property entitlement, and violations of property rights ought to be punishable regardless of the transgressor’s fault.⁴⁰ Another explanation is that the defendant should face absolute liability because they are better positioned to avoid loss, at least as compared to the copyright owner.⁴¹ The idea is that “as between owners and infringers, it is more efficient for infringers to bear the costs of infringement.”⁴² Yet another familiar theme is that a strict liability standard serves an evidentiary function: it relieves plaintiffs of the burden of proving the infringer’s state of mind.⁴³

To understand how our strict liability system came to be, it is critical to consider its historical genesis. As others have noted, Judge Learned Hand first laid the foundations for a strict liability regime in a spate of early-twentieth-century decisions dealing with copyright infringement.⁴⁴ In these cases, Judge Hand dismissed the defendants’ claims of ignorance on the theory that the copyrights at issue were registered with the Copyright Office: the defendants, Judge Hand suggested, were on notice as to the existence of the copyright.⁴⁵ At the time these decisions were issued, copyright registration was mandatory.⁴⁶ Failure to register the rights would lead to copyright forfeiture.⁴⁷ Because the infringed works were registered, Judge Hand could reasonably surmise that the defendants had proper notice of the status of the works they had copied.

Thus, a strict liability regime was defensible on more functional grounds. It arose at a time when copyright registration was mandatory. Registration provided notice of a work’s legal status. And copyright protection was also conditioned on an additional notice affixed to copies of the work—every published copy had to include a notice specifying who the copyright owner was and when the copyright was registered.⁴⁸

But these formalities were eliminated or rendered optional in the late twentieth century.⁴⁹ Consequently, under our current system, it has become increasingly difficult to track down and identify the owners of certain works.⁵⁰ Copyright protection today vests automatically—authors need not take any affirmative steps to register their rights or apply for copyright protection.⁵¹ This complicates matters. Because copyrights vest automatically but are not registered, the risk of accidental infringement has grown measurably. It is indeed harder to justify a strict liability regime in a world where the risk of accidental infringement is so high.

Meanwhile, copyright’s strict liability regime has been the subject of sustained scholarly attention. A strict liability regime, scholars contend, is no longer workable. By increasing the likelihood that inadvertent infringers face liability, a strict liability scheme threatens to disproportionately expand the scope of copyright entitlements. Dane Ciolino and Erin Donelon, for instance, argue that strict liability frustrates the very objectives underlying our copyright system—it overprotects preexisting works, thus decreasing accessibility and preventing future authors from engaging with and building on existing works.⁵² Patrick Goold rails against copyright’s strict liability regime on moral grounds. Quite apart from any of the practical consequences that might attend a strict liability system, Goold explains that liability for accidental infringement is morally unjust—it is simply unfair to impose liability on a defendant who did everything they reasonably could to avoid infringement.⁵³ Avihay Dorfman and Asaf Jacob claim that strict liability makes little sense in a system focused on intangible goods—among other problems, intangible goods are difficult to define and their legal status is often uncertain.⁵⁴ Finally, Jacqueline Lipton asserts that strict liability aligns poorly with the realities of the digital era.⁵⁵ In a world where technology allows for the mechanical, accidental, and often involuntary copying of works, strict liability is inappropriate.⁵⁶

In 2012, Shyamkrishna Balganesh offered a more systematic account of copyright infringement.⁵⁷ As Balganesh points out, the basic structure of the infringement action does not require proof of harm. To make a prima facie case of copyright infringement, the plaintiff must prove (1) ownership of a valid copyright in the work and (2) infringement of one of the plaintiff’s rights, requiring both copying-in-fact and improper appropriation.⁵⁸

The question of harm is curiously absent from this basic scheme. As Balganesh notes, it is only later in the process, when confronting the question of fair use, that the issue of harm comes into play. Fair use is copyright’s most important defense to claims of infringement.⁵⁹ In determining whether the defendant’s copying qualifies as fair use, courts consider a range of statutory factors, including the question of “market harm”—the “effect of the use upon the potential market” for the copyrighted work.⁶⁰ So although harm is not an element of the infringement tort, it surfaces as part of the fair use inquiry. The issue of harm, then, is baked into the defense stage. Nevertheless, although the question of harm is central to the fair use analysis, the larger point remains: our copyright system is essentially a no-fault regime, one in which it “makes little difference for liability whether the copying was intentional, negligent, or a genuine mistake.”⁶¹

Others, though, question whether our system is truly a strict liability regime. In a series of articles published over the past few years, Goold articulated an intricate account calling into question the conventional view that copyright is best conceptualized as a strict liability regime.⁶² Goold posits that the infringement tort does, in fact, accommodate a fault element. This element, however, has gone largely unnoticed thanks to copyright’s messy structure.⁶³ The fair use principle is again central to the story: Goold suggests that the fairness standard reflected in the fair use inquiry is a kind of fault standard, somewhat analogous to the reasonableness standard undergirding negligence law.⁶⁴

But whatever one makes of Goold’s analysis, it is not at all clear that the fair use defense can meaningfully relax the no-harm regime that lies at the heart of copyright’s prima facie case. For many would-be infringers, the fair use defense is no silver bullet. The fundamental problem with fair use is that it relies on an ex-post analysis of four factors.⁶⁵ By design, the fair use inquiry is case specific and can only be tested by a court after the fact.⁶⁶ To prevail on fair use, the defendant must withstand lengthy and uncertain litigation.⁶⁷ For that reason, risk-averse defendants would often choose to settle out of court.⁶⁸ With the specter of statutory damages looming in the background, the risks of going to court are too grave. In such circumstances, the safe choice—and perhaps the only sensible one—is to settle.

The idea here is clear: whether the fair use doctrine introduces a fault standard, as Goold claims, is beside the point. For many would-be infringers, the fair use defense never really comes into play. And while it may be true that, as an analytical matter, copyright infringement is best characterized as a fault liability tort, this is largely tangential to the broader argument I advance here—that our current regime is overly burdensome.

B. Statutory Damages

A successful plaintiff in an infringement action may pursue one of two remedial avenues.⁶⁹ The first entitles a victorious plaintiff to collect actual damages plus infringement-related profits.⁷⁰ The second relieves a prevailing plaintiff of the burden of establishing actual harm, allowing instead for the recovery of statutory damages.⁷¹ Ordinarily, a plaintiff may recover statutory damages ranging from $750 to $30,000 for any infringed work.⁷² The number of statutory awards depends on the number of infringed works.⁷³ Each statutory award may be reduced to a sum of no less than $200 per work in cases of innocent infringement,⁷⁴ or increased—up to a sum of $150,000 per work—in cases of willful infringement.⁷⁵

As a practical matter, the Copyright Act offers little guidance on how courts might assess statutory damages.⁷⁶ As § 504 (“section 504”) of the copyright statute makes clear, the court is at liberty to adjust the award as it “considers just.”⁷⁷ In practice, in the absence of a jury trial, courts often assess damages by reference to four principal factors: (1) the harm suffered by the plaintiff; (2) the profits collected by the defendant; (3) the infringer’s state of mind, namely, whether the infringement was willful, knowing, or innocent; and, finally, (4) whether either of the parties had violated its contractual obligations.⁷⁸ More broadly, some courts also attend to the objectives animating our statutory regime. The Second Circuit, for example, often undertakes a more elaborate inquiry into “the deterrent effect on the infringer and third parties,” as well as “the infringer’s cooperation in providing evidence concerning the value of the infringing material” and “the conduct and attitude of the parties.”⁷⁹

Moreover, as noted above, the statutory award may be decreased to a sum of no less than $200 per work in cases of innocent infringement.⁸⁰ In such cases, the defendant bears the burden of proving that they were not aware, and had no reason to believe, that their actions were infringing.⁸¹ The burden here is twofold: the defendant must establish both that they did not believe their acts constituted infringement and that their belief was reasonable. Whether an award is ultimately reduced, though, remains a discretionary matter, and a court may refuse to do so even in cases involving innocent infringers.⁸² Finally, it is also important to note that the Copyright Act precludes reliance on the “innocent infringement” defense when a defendant had access to published copies bearing a copyright notice.⁸³

Similarly, in cases of willful infringement, the court may enhance the amount of statutory damages to a sum of “not more than $150,000” per work.⁸⁴ Whether the infringement was “willful” depends on the infringer’s state of mind.⁸⁵ And although a determination of willfulness can prove somewhat elusive,⁸⁶ the prototypical case of willful infringement involves a defendant who knowingly infringed the plaintiff’s rights⁸⁷ or otherwise displayed “reckless disregard for, or willful blindness to, the copyright holder’s rights.”⁸⁸ The point is that, even absent actual knowledge of infringement, the defendant may be held liable for willful infringement so long as they displayed reckless disregard of the plaintiff’s rights.

One strong indication of reckless disregard is a history of past infringements.⁸⁹ Another piece of evidence probative of willfulness is the infringer’s past record of seeking authorization prior to using other copyrighted works.⁹⁰ Indeed, a defendant who was previously vigilant in obtaining licenses but failed to do so at a later point may be deemed to have engaged in willful infringement. In addition, the Ninth Circuit has suggested that a jury could find willfulness where a company failed to promulgate any procedures for “establishing or reporting on who holds the rights to the [works] whose use is proposed.”⁹¹ And a court may likewise draw an inference of willful infringement when the defendant ignores a letter informing them, in concrete terms, of infringement.⁹²

At the same time, a host of countervailing factors might cut against a finding of willfulness. For one thing, when fair use is a close call, some courts insist that it would be inappropriate to infer willfulness even if the defendant is ultimately found liable.⁹³ Take the case of Princeton University Press v. Michigan Document Services, Inc., in which a university press sued a copy shop for selling unauthorized “coursepacks.”⁹⁴ The court concluded that the defendant’s copying did not constitute fair use⁹⁵ but took pains to note that the question was a close one—indeed, there were “forcefully argued dissents” on the issue.⁹⁶ As a consequence, the court declined to determine whether “the defendants’ belief that their copying constituted fair use was so unreasonable as to bespeak willfulness.”⁹⁷

Courts have also refused to countenance claims of willful infringement when the defendant had a reasonable belief that their actions were legally permissible, even if they had been notified that their use of the work was potentially infringing.⁹⁸ Furthermore, some plaintiffs may struggle to establish claims of willful infringement when the defendant did not consult a lawyer⁹⁹ or when the infringer performed a search of Copyright Office records but could not locate any records for the plaintiff’s work.¹⁰⁰

In short, a successful plaintiff may choose to recover statutory damages at any point before a final judgment is rendered. Typically, a statutory award can range from $750 to $30,000 for every infringed work.¹⁰¹ The award may be reduced to a sum of no less than $200 per work in cases of innocent infringement or increased to a sum of no more than $150,000 per work in cases of willful infringement.¹⁰² The number of statutory works is tied to the number of infringed works and, in some cases, the number of infringers.¹⁰³

This Section draws out two of the central problems ailing our copyright system. The first is that copyright infringement is principally understood to be a strict liability regime. And while this regime is tempered by the flexible fair use standard, it is also true that fair use is mostly irrelevant for a great many defendants—namely, those who might choose to settle out of court. The second major issue confronting our system is that copyright owners can choose to recover a separate award of statutory damages for every implicated work. Since these awards can range anywhere from $200 to $150,000 per work,¹⁰⁴ vast fortunes hang in the balance.

One might inquire, however, as to the interaction between these two aspects of our copyright system. While the defendant’s state of mind is wholly absent from the liability analysis, it does inform the damages calculus. As this Section makes plain, whether the infringer had real or constructive knowledge that their acts were infringing is key to determining whether they face reduced or increased statutory damages. Therefore, in a sense, these two features of our system—strict liability and statutory damages—work in unison. Theoretically, when liability is imposed on an innocent infringer, courts may choose to reduce the award under the category of innocent infringement (in which case, the award could be as low as $200 per work).¹⁰⁵ When one mechanism (strict liability) fails, judges can tap into the other (statutory damages) to prevent an unjust outcome—that is, to prevent an inadvertent infringer from facing an excessive award.

There is just one problem: in reality, the law of statutory damages is arbitrary, haphazard, and unpredictable. Part II will explore the law in action. It will show that different courts harbor very different ideas about what might qualify as an appropriate statutory award. Indeed, courts issue wildly divergent awards in factually similar cases. And, worse, courts cannot even agree on what statutory damages are meant to achieve: some believe statutory damages are rooted in a compensatory rationale, while others insist that statutory damages are meant to punish or deter future infringers. The result is a body of caselaw that often seems excessive or unprincipled.

II. STATUTORY DAMAGES IN ACTION

This Part discusses the principal issues plaguing the law of statutory damages. First, courts often disagree over the appropriate justification for statutory damages, oscillating between compensatory, punitive, and deterrence-based concerns. Second, the caselaw turns out to be unpredictable or otherwise arbitrary—in cases sharing a similar fact pattern, courts mete out divergent awards. In part, this is because various courts employ different multipliers to calculate damages. Third, statutory damages can at times lead to shockingly excessive awards. Because statutory damages are computed on a per-work basis, awards can dramatically rack up in cases that implicate multiple works. Fourth, and perhaps most bafflingly, the per-work structure of statutory damages can produce some unintended consequences: because damages attach to infringed works rather than infringed rights, courts tend to systematically gloss over certain exclusive rights. The net result is an underdeveloped body of law. I take up these issues in turn.

A. Justifications

In many cases, courts award statutory damages “with little to no attention . . . to their underlying purpose.”¹⁰⁶ Debates about statutory damages tend to home in on three standard justifications. First, some courts believe that statutory damages are grounded in a compensatory-evidentiary justification. The general idea is that copyright owners may struggle to prove actual harm.¹⁰⁷ Indeed, proponents of statutory damages believe that there is something distinctive about the evidentiary challenges facing copyright plaintiffs.¹⁰⁸ Imagine, for example, a copyright owner whose work was illegally distributed online and then downloaded by third parties. In such circumstances, a court might struggle to “assess how many of these third-party downloads dislodged actual sales that would have otherwise taken place if the work had been distributed by the plaintiff.”¹⁰⁹ In other instances, the information needed to prove actual damages might lie “uniquely within the infringers’ control.”¹¹⁰

Given these challenges, the argument goes, statutory damages serve a crucial role in ensuring that rightsholders get compensated for their losses. Without statutory damages, copyright holders would face an all-or-nothing regime; they would not be able to obtain compensation at all if they cannot prove actual loss. On this view, statutory damages are directed at a particular problem—the difficulty of proving actual damages—and should thus seek to account for actual harm. They should approximate, if only imperfectly, “the amount that would be recovered as actual compensation.”¹¹¹

This compensatory justification, simple and intuitive as it may seem, has found favor with many courts.¹¹² The legislative history, too, seems to indicate that compensatory instincts partly underlie our statutory scheme.¹¹³

Yet, as Bracha and Syed point out, the evidentiary justification suggests two related principles. First, if our goal is to address the difficulties of proving harm, statutory damages should only be available when evidence of actual harm is unavailable or difficult to obtain. Second, statutory damages should approximate actual harm as best as possible.¹¹⁴

The problem, of course, is that neither principle finds support in the caselaw or in the language of the copyright statute. Nowhere does the Copyright Act limit the availability of statutory damages only to circumstances where evidence of actual harm is difficult to recover.¹¹⁵ Courts, in turn, treat statutory damages “as a matter of unqualified right.”¹¹⁶ And statutory awards often seem wholly unmoored from compensatory instincts—courts have developed no rules to cap statutory damages based on an assessment of actual damages. In fact, courts sometimes calculate the proper compensatory sum and then multiply it to arrive at a statutory award that is, by definition, supracompensatory.¹¹⁷ The compensatory rationale, then, does not quite map onto the caselaw.

Another justification courts occasionally invoke is that statutory damages serve a punitive or retributive role—punishing the infringer for their wrongful conduct.¹¹⁸ Many courts endorse this idea of punishment as a justification for statutory damages.¹¹⁹ And while judges seldom clarify exactly what they mean in describing statutory damages as “punitive,” the basic idea is simple: it is fair for the wrongdoer to suffer in direct proportion to the wrong they inflicted. The wrongdoer deserves to be punished.

This punitive rationale meshes rather neatly with the language of the Copyright Act. The statute, after all, establishes a tripartite framework to distinguish among different categories of infringement—regular, innocent, and willful—based on the infringer’s mental state.¹²⁰ That is, the infringer’s level of culpability is measured by reference to their state of mind. Correspondingly, the appropriate remedy is adjusted in proportion to the infringer’s degree of culpability—namely, whether they had actual or constructive knowledge that their actions were infringing.

But the larger picture, again, is quite messy. As Bracha and Syed observe, it would be peculiar for our system to enforce a punitive rationale through copyright’s statutory damages scheme.¹²¹ That is because our copyright system already classifies certain acts as criminal offenses.¹²² Retribution is widely understood to be the classic justification for criminal sanctions.¹²³ Criminal enforcement is also subject to a host of procedural and substantive safeguards, as well as a heightened burden of persuasion.¹²⁴ Accordingly, one might question whether copyright’s scheme of civil remedies should serve any punitive purposes. Why should we impose punitive penalties for conduct that does not meet the heightened standard for criminal culpability under the Copyright Act?

Moreover, the caselaw remains inconsistent and unpredictable. Some courts appear to recognize both compensatory and punitive instincts as proper justifications for statutory damages.¹²⁵ Others embrace a more constricted view, insisting that punitive damages should be available only in cases of willful infringement.¹²⁶ And sometimes courts dismiss the punitive rationale altogether, implying that statutory damages that extend beyond the purely compensatory level reflect an impermissible “windfall” for the plaintiff.¹²⁷ The bottom line is that the courts’ treatment of the punitive rationale is unpredictable or otherwise inconsistent.

A third justification that courts occasionally marshal in support of statutory damages is a more intuitive one: deterrence. Typically paired with the punitive rationale, the need to deter future infringements figures prominently in many cases discussing statutory damages,¹²⁸ as well as jury instructions.¹²⁹ The corollary is that statutory damages, justified by the need for deterrence, should reflect a supracompensatory penalty.¹³⁰

Yet doubts abound here as well. First, the idea of deterrence, if taken to reflect a broad justification for statutory damages, tends to fit poorly with our statutory scheme. It is not clear why we would think deterrence appropriate in cases involving innocent infringers. When a case implicates accidental infringement—for example, a defendant who had no reason to believe that their acts were infringing—the concept of deterrence seems irrelevant. As Bracha and Syed ask, “Why would we want to deter people from engaging in reasonable behavior?”¹³¹

And even in cases of willful infringement, it is doubtful whether the deterrence rationale is necessarily appropriate. If statutory damages are truly about deterring individuals from engaging in wrongful conduct, it should not matter what their mental state is, be it willfulness, reckless disregard, or even malice. If we aim to discourage infringements, it should not matter whether the infringer held a particular mental state.

Second, courts and commentators rarely offer anything more than a bare-bones explanation for why one might think deterrence is even warranted.¹³² Is there any evidence to support the proposition that purely compensatory penalties cannot deter would-be infringers? What is the appropriate level of deterrence? And why should we want to achieve a level of deterrence that goes beyond what is already produced by compensatory damages? As Depoorter has explained, the most colorable justification for supracompensatory damages—and one that courts regularly skirt—is that there is a strong need for deterrence given the substantial costs of detecting and enforcing infringement.¹³³ The optimal level of deterrence, then, would depend on enforcement costs.

Third, as with the other justifications sketched above, the jurisprudence governing statutory damages has been unpredictable. Courts tend to vacillate between the standard justifications for statutory damages. While some adopt both punitive and deterrence-based rationales,¹³⁴ others are perfectly content to focus exclusively on compensatory impulses.¹³⁵

In sum, all three justifications for statutory damages are under siege from different directions. The caselaw is muddled and the statute is underspecified. Courts have struggled to articulate a proper justification for statutory damages and have largely failed to clarify why one justification is preferable to another. The jurisprudence thus boils down to a hodgepodge of conflicting and alternating views on what might qualify as a valid rationale for copyright’s robust scheme of statutory damages.

B. Predictability and Consistency

This much is clear: the caselaw is not a model of clarity. Critics have long criticized the law of statutory damages as indeterminate or otherwise arbitrary.¹³⁶ The problem is that courts appear to have only a rudimentary understanding of copyright’s remedial scheme, and they rarely attempt to apply the law in a manner that is consistent and predictable.

Begin with one of the central challenges in assessing damages: the use of multipliers. In calibrating statutory awards, courts and juries often use a simple, two-step formula. First, they identify the plaintiff’s actual loss—say, the licensing fee the plaintiff would have charged if their rights had not been infringed. Second, courts apply a multiplier to the amount identified in the first step. For example, if the lost fee was $5,000 and the court elected to use a multiplier of three, the final award would be $15,000 ($5,000 x 3).

Yet courts have done little to generate any sense of consistency in the application of multipliers. Cases among and within circuits reveal large discrepancies. For example, in R.A. Guthrie Co., Inc. v. Boparai, the court rejected the plaintiff’s argument that a multiplier of five would be appropriate.¹³⁷ Instead, the court identified a standard multiplier of two to three,¹³⁸ and then decided to apply a larger multiplier of four to account for the defendant’s willful infringement.¹³⁹ The court’s determination was based on its “sense of justice.”¹⁴⁰ The final award totaled $240,000.¹⁴¹

In another case, Strober v. Harris, a district court in Florida applied a multiplier of six.¹⁴² Notably, the multiplier here consisted of two elements: (1) a multiplier of three, designed to account for the defendant’s willful infringement; and (2) a “scarcity multiplier” of two, meant to account for the “unique” and “rare” attributes of the plaintiff’s work.¹⁴³ After assessing the lost licensing fee at $5,000, the court employed a multiplier of six to arrive at a total award of $30,000 in statutory damages.¹⁴⁴

Similarly, in Sadowski v. Primera Plana NY, the court invoked a more modest multiplier of three, explaining that the plaintiff did not assert that he ever notified the defendant of infringement.¹⁴⁵ Other courts have applied multipliers of two, five, and seven.¹⁴⁶ Of course, the practical difference between a multiplier of two and a multiplier of eight could be dramatic, depending on the plaintiff’s actual loss and the number of works at play.

But there is far more nuance to the caselaw. Some courts have suggested that double-digit multipliers—that is, multipliers of ten and above—are grossly excessive and potentially impermissible. Consider Affordable Aerial Photography, Inc. v. Palm Beach Real Estate, in which the court rejected the plaintiff’s request that a multiplier of thirty-six be used for each of its three infringed works.¹⁴⁷ The plaintiff argued for an award of $108,000 in statutory damages, based on an assessment of $1,000 in lost licensing fees for each of the plaintiff’s three works, multiplied by thirty-six ($1,000 x 3 x 36 = $108,000).¹⁴⁸ After rejecting the proposed multiplier, the court suggested that even a more modest multiplier of 14.4 would “create a windfall for the [p]laintiff.”¹⁴⁹

Or take the case of Markos v. Yacht Charters of Miami.com.¹⁵⁰ The plaintiff asked for three separate multipliers to be applied: a scarcity multiplier of three, a “quality . . . factor” multiplier of four, and a “willful [infringer]” multiplier of five, thereby settling on an aggregate multiplier of sixty.¹⁵¹ The court was quick to reject the requested multiplier as excessive, opting instead for a multiplier of three.¹⁵² Likewise, the court in Stockfood America, Inc. v. Fernando Arcay Special Events Corp. reasoned that a multiplier of twenty was excessive and thus inappropriate.¹⁵³ And a court in another case, Schwabel v. HPT Service, LLC, dismissed a multiplier of fifteen and instead applied a multiplier of three.¹⁵⁴

However, in a long line of cases, courts and juries have applied far larger multipliers—sometimes thousands of times the amount of actual damages. Think, for instance, of a case referenced earlier, Capitol Records, Inc. v. Thomas, in which a record label sued a defendant for illegally downloading twenty-four songs.¹⁵⁵ The jury ultimately awarded the plaintiff $9,250 per infringed song for a total award of $220,000.¹⁵⁶ This award was particularly jarring given the fact that, as the court emphasized, the plaintiff’s actual loss amounted to $50.¹⁵⁷ The resulting award, therefore, was roughly 4,000 times larger than the sum of the plaintiff’s actual damages.

In another notable case, Zomba Enterprises, Inc. v. Panorama Records, Inc., the court awarded the plaintiff $31,000 per infringed work for an aggregate award of $806,000.¹⁵⁸ The defendant argued that the award was grossly excessive—it was thirty-seven times the plaintiff’s actual damages.¹⁵⁹ On appeal, the Sixth Circuit upheld the award.¹⁶⁰ Other courts have variously used multipliers of 10, 20, and 300.¹⁶¹

Moreover, as Samuelson and Wheatland explain, inconsistent awards in factually similar cases are “easy to find.”¹⁶² Often, a series of cases brought by the same plaintiff (such as a record label) in connection with a set of nearly identical infringing acts can lead to wildly divergent awards.¹⁶³ And in many cases—especially ones involving excessive awards rooted in double-digit multipliers—the size of the final award seems inexplicable.¹⁶⁴ Equally troubling is the fact that cases dealing with similar categories of infringing acts sometimes yield markedly inconsistent awards.¹⁶⁵

And broader issues persist. Looking at the caselaw, one gets the distinct sense that courts do not have a firm grasp of copyright’s remedial scheme. A few different problems intersect. First, and perhaps most perplexingly, judges sometimes jump straight to the statutory maximum, even when the defendant was not especially culpable and the plaintiff suffered little to no harm.¹⁶⁶ Second, and relatedly, Samuelson and Wheatland find that courts often treat the statutory maximum as a starting point and then work backwards from there.¹⁶⁷ And in one of the cases discussed before, Zomba Enterprises, the court appears to have erroneously assumed that, if the defendant is found to be a willful infringer, the court must award above $30,000 in damages—which would explain why the court issued an oddly specific and otherwise atypical award of precisely $31,000 per work.¹⁶⁸

The picture, in other words, is a profoundly bleak one. Courts dole out inconsistent awards in factually similar cases. They cannot quite agree on the appropriate multiplier range. They do not understand the law’s remedial structure. And, as the previous Section showed, they disagree over the proper justification for statutory damages.

C. Excessive Awards

The law is not just inconsistent but can also produce outlandish statutory awards that seem entirely divorced from any conception of actual harm or culpability. Partly at fault for this state of affairs is the per-work structure of our remedial system. Even a reasonable award can become excessive thanks to the aggregation requirement: courts and juries are simply compelled to multiply the award by the number of infringed works.

A few examples might prove instructive. Consider again a case discussed throughout this Article, Capitol Records, Inc. v. Thomas.¹⁶⁹ The final award in that case was 4,000 times the sum of the plaintiff’s actual damages.¹⁷⁰ The jury assessed statutory damages of $9,250 per work, although the trial judge observed that the plaintiff’s actual damages—for the 24 works combined—amounted to about $50.¹⁷¹

It bears emphasizing, though, that even at the statutory minimum of $750 per work, the total award in Capitol Records, Inc. v. Thomas would have been excessive. Because the case involved 24 infringed works, and because statutory damages are awarded on a per-work basis, the jury would have to issue a minimum aggregate award of no less than $18,000 ($750 x 24).¹⁷² But recall again that the actual harm suffered by the plaintiff in that case was roughly $50. So even under the statutory minimum, the aggregate award would have been 360 times the plaintiff’s actual damages—an appallingly excessive award by any measure.

Now consider the procedural history of Capitol Records, Inc. v. Thomas. After the jury returned an award of $220,000 against the defendant, the trial judge vacated the judgment and ordered a retrial on the basis of a jury instruction error.¹⁷³ In doing so, the judge also cautioned that Congress did not intend for large statutory awards to be “applied to a party who did not infringe in search of commercial gain.”¹⁷⁴ Remarkably, however, the second trial turned out to be even more controversial: the jury increased the statutory award to $80,000 per work, for a final award of $1.92 million.¹⁷⁵ Following the second trial, the defendant filed a post-trial motion requesting, among other things, that the court reduce the jury award either by way of remittitur or under the Due Process Clause.¹⁷⁶ The court agreed. It lambasted the second award as “simply shocking” and remitted it to a sum of $2,250 per work, for a total award of $54,000.¹⁷⁷ As the court stressed,

despite the . . . justifications [for increased damages] and the Court’s deference to the jury’s verdict, $2 million for stealing 24 songs for personal use is simply shocking. No matter how unremorseful Thomas-Rasset may be, assessing a $2 million award against an individual consumer for use of Kazaa is unjust. Even Plaintiffs admit that Thomas-Rasset is unlikely to ever be able to pay such an award.¹⁷⁸

The record companies then exercised their right to seek a new trial on the question of damages.¹⁷⁹ The district court held a third trial, and the jury returned an award of $62,500 per work, yielding a total award of $1.5 million.¹⁸⁰ Once again, the defendant moved to amend the judgment.¹⁸¹ The district court again granted the defendant’s motion and reduced the award to $2,250 per work, leading to a final award of $54,000.¹⁸² The record companies appealed, and the Eighth Circuit reinstated the first award of $222,000.¹⁸³

What makes Capitol Records, Inc. v. Thomas particularly egregious is that the case appears to pit a poorly resourced defendant against a group of deep-pocketed plaintiffs that suffered little material harm. But the issues here were further compounded by the aggregation requirement. Since the defendant technically infringed the plaintiffs’ rights in twenty-four individual works, even a minimum statutory award would have been grossly excessive. Given copyright’s per-work structure, the prospect of crippling damages was virtually inescapable.

Another example is Columbia Pictures Television v. Krypton Broadcasting of Birmingham, Inc.¹⁸⁴ Columbia Pictures sued the owner of several television stations for broadcasting four copyrighted television programs without a license.¹⁸⁵ The court found for Columbia and entered an award of $20,000 per episode.¹⁸⁶ Because the infringed shows consisted of 440 episodes, the court issued a total award of $8.8 million.¹⁸⁷ After the Ninth Circuit affirmed the judgment, the Supreme Court reversed and remanded for failure to grant the defendant a jury trial on the issue of damages.¹⁸⁸ After a jury trial was convened, the jury returned a staggering award of $72,000 per infringed episode, for a total award of $31.68 million.¹⁸⁹ Here, too, aggregation proved fatal. Because each episode constituted a separate work, the per-work award had to be multiplied by 440, leading to a final award in excess of $30 million.¹⁹⁰

The number of infringed works is often a matter of bitter contestation for that reason precisely. Take, for example, Yellow Pages Photos, Inc. v. Ziplocal, LP.¹⁹¹ Yellow Pages Photos licensed stock photos for the yellow pages industry.¹⁹² It owned a library of thousands of photos that were sorted into themed collections.¹⁹³ Yellow Pages Photos brought action against two companies for infringing its rights in 178 collections that contained 10,411 photos.¹⁹⁴ The jury returned an award of $123,000 in statutory damages against one of the defendants.¹⁹⁵ On appeal, the plaintiff argued that the court erred in treating each of its 178 collections, rather than each of its 10,411 photos, as a separate work.¹⁹⁶ The relevant benchmark, the plaintiff asserted, was the number of individual photos, not the number of collections.¹⁹⁷ As the Eighth Circuit explained, “[b]y taking the position that its 10,411 individual photos are each separate works, [the plaintiff] presumably [sought] to raise the statutory damages award in this case from $123,000 to a minimum of $1.5 million and a potential maximum of $300 million.”¹⁹⁸ Ultimately, the court rejected the plaintiff’s claims, holding that each collection was an individual work under the Copyright Act.¹⁹⁹

Still, this case offers a neat illustration of the broader issues. Although the plaintiff’s claims were eventually rejected, the critical point is that the aggregation requirement presented a serious threat. The scope of the defendants’ potential exposure was startling: depending on how the court might have chosen to count the number of implicated works, the defendants could have faced an award ranging anywhere from $123,000 up to $300 million. Indeed, as this brief discussion demonstrates, our per-work system is broken. Statutory damages can add up quickly and dramatically in cases involving multiple infringed works. And that should give us pause.

D. The Copyright Wasteland

I have argued elsewhere that per-work statutory damages have another profound yet overlooked consequence: they discourage courts from properly developing copyright law.²⁰⁰ Modern copyright law, to be sure, is underdeveloped. Typically, courts focus on one exclusive right—the right to reproduce the copyrighted work—while glossing over all other copyright entitlements.²⁰¹ As a result, we do not have a clear sense of what some exclusive rights mean or how they might be applied. Courts have not really grappled with many questions central to the scope of these rights.²⁰²

One example is the exclusive right to distribute the copyrighted work.²⁰³ It is an open question whether the distribution right extends only to “actual dissemination,” namely, to circumstances where copies of the work were offered to and received by members of the public.²⁰⁴ Thus, in cases centering on claims of online distribution, it is unclear whether the plaintiff must show that copies of the work were not only uploaded online but also downloaded by third parties. District courts have been somewhat divided on the issue, although most courts now seem increasingly more hospitable to the view that distribution does, in fact, require proof of actual dissemination.²⁰⁵ But, stunningly, circuit courts have not weighed in on the question.²⁰⁶ Nor has the Supreme Court.²⁰⁷

Why is that the case? The answer is that courts never really have to address the issue. Virtually every copyright infringement case involves claims of unauthorized reproduction.²⁰⁸ And once courts establish that the right of reproduction has been infringed, all other rights turn out to be inconsequential. It does not matter how many separate exclusive rights were infringed; a single infringement suffices. That is because statutory damages attach to infringed works rather than infringed rights. So, it is irrelevant whether there is one right at issue or a few separate ones—the result, in terms of the final statutory award, will be the same.²⁰⁹ The only thing that matters is the number of infringed works, not infringed rights.²¹⁰

In that sense, there is little incentive for courts to properly address copyright’s full suite of exclusive rights. Instead, courts tend to fixate on one exclusive entitlement—the right of reproduction—to the exclusion of all others. And this pathology, again, is an artifact of copyright’s per-work scheme of statutory damages.

III. TOWARD STRUCTURAL REFORM

The discussion thus far offers a grim perspective. It paints a picture of a system run amok. It demonstrates that copyright’s scheme of statutory damages is troublesome for any number of reasons: it rests on ever-shifting and poorly developed justifications; it is rooted in a body of caselaw that is both arbitrary and inconsistent; it can lead to outlandish awards; and it allows courts to systematically shun certain exclusive rights.

Where does this leave us? I offer here a high-level sketch of one possible solution. In simple terms, I suggest that we disentangle the number of statutory awards from the number of infringed works. Instead, I develop a framework for assessing damages by reference to the concept of infringement episodes. An infringement episode, in a nutshell, is a series of related infringing acts that together make up a single, larger event. When courts identify a single infringement episode, they may choose to issue only a single statutory award—no matter how many individual works are in play. The proposed framework would thus introduce a degree of much-needed flexibility into our system. Rather than engage in a mechanical exercise of counting works, courts and juries would enjoy a significant measure of discretion to assess whether the defendant’s actions are sufficiently interconnected to constitute a single, larger episode.

This Part begins by offering a brief overview of the proposed framework. I explain that previous proposals have not gone far enough in confronting the main problem, and then describe in general terms how an approach rooted in the concept of infringement episodes might work. I next turn to demonstrate that a similar approach, based on a holistic assessment of the defendant’s actions, already exists and is widely employed in the fields of criminal law, civil procedure, and immigration law. I close by cashing out my proposed framework and developing a more fine-grained account of how courts might identify infringement episodes.

A. Overview

To reiterate, statutory damages are awarded on a per-work basis. And this is a problem for two related reasons. First, copyright’s per-work scheme forces courts to aggregate damages in ways that lead to unpredictable—and often excessive—awards. In cases like Yellow Pages Photos,²¹¹ for example, conflicting views on how to measure the number of works could potentially produce earth-shattering consequences. Under the defendants’ count, the statutory minimum was $120,000 to $135,000, and under the plaintiff’s, the

statutory award could have been as high as $1.5 billion.²¹² A divergence of this scope and intensity is indefensible. Second, as discussed above, per-work damages generate a legal equilibrium in which the number of infringed rights, as opposed to infringed works, is of little practical significance.²¹³ And that is why courts tend to glaze over certain exclusive rights. The result is an impoverished body of caselaw.²¹⁴

Per-work damages, then, have worked considerable harm to the copyright system. And copyright scholars, for their part, have suggested a number of doctrinal or legislative reforms to address the issue. Let us first consider what is arguably the most serious attempt to confront the problem of excessive damages in recent years: Depoorter’s multifaceted proposal for reducing the incidence and availability of excessive awards.²¹⁵ Based on a close analysis of docket records and court decisions, Depoorter finds that “a vast majority of plaintiffs accuse defendants of willful copyright infringement.”²¹⁶ Indeed, “[t]the sheer number of willful infringement claims is remarkable,” especially when one considers that enhanced damages were originally designed to address only exceptional cases.²¹⁷ Nevertheless, Depoorter also finds that, of all cases where the plaintiff won on the merits, courts awarded increased damages for willful infringement in only 2.8% of cases.²¹⁸ This glaring mismatch between what plaintiffs allege and what courts find suggests that plaintiffs engage in remedy overclaiming.²¹⁹

Based on these findings, Depoorter puts forward a number of prescriptive proposals. First, he advances a series of proposals meant to make remedy-overclaiming more costly to opportunistic plaintiffs. One way to do so is to impose sanctions on plaintiffs who make inflated or exaggerated damage claims.²²⁰ Under the current statute, a plaintiff seeking statutory damages need not justify their damage claims on the basis of actual harm.²²¹

And attorney cost fee-shifting is only available to the prevailing party,²²² so a defendant who lost but faced an outlandish award claim (which was ultimately rejected by the court) has no effective recourse. Depoorter thus recommends that Congress amend the Copyright Act to allow for fee-shifting in cases in which the plaintiff is ultimately found to have made inflated damage claims, even if the plaintiff prevailed in litigation.²²³

Second, Depoorter also presses a few proposals designed to make remedy-overclaiming less risky to defendants. One way to achieve this is by developing a set of guidelines and standards to govern the application and assessment of statutory damages.²²⁴ A second useful step would be to simply reduce the statutory range—which currently extends from $750 to $150,000 in most cases.²²⁵ Yet another helpful measure would seek to increase transparency by forcing courts to explain, in detail, the “motivation and calculation involved with every statutory award,” as well as by establishing a central database to collect statutory award judgments.²²⁶ Depoorter also suggests that Congress eliminate enhanced damages for willful infringement or otherwise limit their availability only to cases of commercial infringement.²²⁷ Another possibility is to impose a cap on the size of the total award.²²⁸ In addition, Congress should amend section 504(c) “so that statutory damages are not available when the defendant has offered credible evidence of its profits and/or the plaintiff’s damages.”²²⁹

Similarly insightful is recent work by Bracha and Syed.²³⁰ Focusing more keenly on the justification for statutory damages, they propose a few ways to think about the role that statutory damages ought to serve in the copyright system. One possible approach is to conceive of statutory damages as serving a compensatory role.²³¹ On this view, courts should strive to award statutory damages that approximate actual harm.²³² Alternatively, courts can frame statutory damages as a means of achieving optimal deterrence.²³³ But optimal deterrence, at least on its face, would seem to justify imposing very high awards on a small number of defendants in an effort to deter future infringement.²³⁴ Thus, an “optimal deterrence” approach would only be defensible to the extent that it is subject to “judicial safeguards against the incurrence of serious inequitable harms.”²³⁵

Two other reform proposals merit attention. One is a study by Pamela Samuelson and Tara Wheatland.²³⁶ Drawing on a comprehensive survey of the history and doctrine of statutory damages, Samuelson and Wheatland make two central claims: first, that statutory damages should ordinarily approximate actual damages; and, second, that enhanced damages should be available only in cases involving the sort of willful infringement Congress had originally contemplated—that is, patently outrageous cases implicating mass-infringement or repeat infringers.²³⁷

Another proposal, introduced by Garfield, focuses on three different approaches to calibrating statutory damages: interpretive, statutory, and constitutional.²³⁸ On the interpretive front, Garfield embraces the set of proposals articulated by Samuelson and Wheatland—proposals that would compel courts to approximate actual damages in most cases and reserve enhanced damages for nakedly egregious cases.²³⁹ But Garfield also notes that such an interpretive fix would not necessarily “translate[] into clear signals that potential users . . . can identify and confidently trust.”²⁴⁰ Garfield thus reasons that additional measures are necessary. On the legislative front, Garfield proposes an amendment of section 504 to (1) clarify that statutory damages should be primarily compensatory, (2) limit enhanced damages to exceptional cases, (3) empower courts to adjust the total award below the statutory minimum even in cases involving multiple works, and (4) give courts discretion to reduce the statutory minimum when a user has a strong innocent infringement claim, even if that user had access to works that bore a valid copyright notice.²⁴¹ Finally, on the constitutional front, Garfield recommends that courts reinvigorate and harness both Due Process and free-speech limits on statutory damages.²⁴²

There is much to admire in these proposals. To be sure, copyright scholars have devoted a great deal of energy to crafting proposals that would limit the scope of statutory damages. But none of these proposals go nearly far enough: they all stop short of severing the link between statutory damages and the number of infringed works. To meet the challenge of the moment, I suggest a legislative reform that would do away with copyright’s per-work remedies altogether. A better framework, I argue, would afford courts a significant degree of discretion to look beyond the number of implicated works and instead evaluate whether the defendant’s conduct gave rise to, and was grounded in, a single infringement episode. By infringement episode, I mean a chain of related infringing acts that together constitute a larger factual event. When the defendant’s conduct is attributable to a single infringement episode, courts should issue only a single statutory award, even if multiple infringed works are at stake.

To illustrate, consider Sony BMG Music Entertainment v. Tenenbaum.²⁴³ A group of record companies brought action against the defendant, Joel Tenenbaum, for downloading and distributing thirty songs.²⁴⁴ The jury found that Tenenbaum had willfully infringed the plaintiffs’ rights and returned an award of $22,500 per infringed song for a total award of $675,000.²⁴⁵ The defendant here was accused of having downloaded works en masse. But what if the court were able to treat the defendant’s conduct as reflecting a single infringement episode? And what if, because the defendant’s actions were sufficiently intertwined, the court were able to issue only a single statutory award?

There is reason to think a single award would have been appropriate in cases like Tenenbaum or Thomas.²⁴⁶ The value of the copyrighted works in both cases was negligible, and the harm to the plaintiff was marginal.²⁴⁷ In both cases, the defendants were private individuals who pursued a noncommercial objective by downloading songs for private consumption. And in both cases, the aggregation of per-work awards proved fatal. After all, a person of average means may never be able to withstand (or fully recover from) a damages award approaching $700,000.

Now, to be clear, courts today already consider some of these factors in calibrating the size of the per-work award.²⁴⁸ Yet the larger problem remains: courts are forced to multiply the award by the number of infringed works.²⁴⁹ So even if a court determines that the per-work award should be lower because the infringer was not especially culpable, the total award may nonetheless prove disproportionately large after the per-work award has been multiplied by the number of infringed works. Recall that in Tenenbaum, the per-work award itself ($22,500) was arguably quite modest, amounting to less than a fifth of the statutory maximum.²⁵⁰ But after it was multiplied by thirty, the award grew dramatically.²⁵¹ The rub is that even a modest per-work award can grow significantly due to aggregation.

To address the issue, I suggest that Congress amend the Copyright Act to permit courts to break with this per-work scheme in cases where they find, based on a multifactor inquiry, that the defendant’s acts were attributable to a single infringement episode. Looking for sources of inspiration, the next Section will explore how courts have approached analogous questions in different fields. And the third Section will then offer a more detailed explication of the proposed framework, discussing the different factors that courts might consider in evaluating the defendant’s course of conduct.

B. Doctrinal Analogues

An assessment of the defendant’s conduct, as explained previously, would have to depend upon an open-textured, case-by-case analysis. But would this system be administrable? Are courts well-positioned to engage in this type of multifactor inquiry? Would the proposed framework spawn lengthy and uncertain litigation?

The answer is no. Across a variety of different legal fields—including criminal law, civil procedure, and immigration law—courts have already developed a rash of somewhat equivalent doctrines aimed at evaluating the defendant’s conduct. These doctrines all share a core commitment: they leverage a flexible, multifactor inquiry to assess whether the defendant’s actions can be lumped together as part of a larger transaction, episode, scheme, or series of occurrences. The following discussion will offer a perfunctory and necessarily incomplete overview of such doctrines. These doctrines, though at times controversial, demonstrate that the proposed framework is both plausible and administrable.

1. Criminal Law

The defendant’s course of conduct features most notably in the doctrine of double jeopardy. The Double Jeopardy Clause of the Fifth Amendment shields a defendant from being “twice put in jeopardy of life or limb” for the same offense.²⁵² The goal of the prohibition against double jeopardy is to protect an individual from “being subjected to the hazards of trial and possible conviction more than once for an alleged offense.”²⁵³ The Supreme Court has interpreted the Double Jeopardy Clause as protecting against a second prosecution for the same offense after either acquittal or conviction.²⁵⁴ More broadly, the Double Jeopardy Clause has also been understood to preclude multiple punishments for the same offense.²⁵⁵ In other words, the central question under the Double Jeopardy Clause is whether the defendant is being punished or tried twice for the same offense.

How do courts define the term “same offense”? Federal courts have long relied on a decades-old test first developed in Blockburger v. United States²⁵⁶ to determine whether the defendant is at risk of being tried twice for the same offense. Under the Blockburger test, when the same act violates two separate statutory provisions, the court is charged with examining “whether each provision requires proof of a fact which the other does not.”²⁵⁷ In essence, courts seek to ascertain whether one or two offenses are at issue. This same-elements test examines the statutory elements of each offense to determine whether one of the implicated offenses incorporates an element that the other does not. Accordingly, if a single act or transaction leads to multiple offenses—namely, if one offense requires additional proof beyond what is required by the other—the Double Jeopardy Clause does not apply.

Yet, ultimately, whether one is placed twice in jeopardy for the same offense is not just a matter of federal law. Many states also encode a robust protection against double jeopardy, either through constitutional provisions or through state statutes requiring joinder of certain offenses.²⁵⁸ And the picture here is more intricate. Some states, like Michigan, apply the Blockburger test.²⁵⁹ Other states, like Louisiana, employ a double-pronged test for defining “same offense”: a variation of the Blockburger same-elements test, coupled with an additional same-evidence test.²⁶⁰ Under the same-evidence test, courts examine whether the evidence necessary to support the second indictment was also sufficient to support a conviction for the first.²⁶¹

A number of states, however, reject the Blockburger same-elements test in favor of a more flexible test: the same transaction or course of conduct test. Consider, for instance, New Jersey. As the New Jersey Supreme Court has explained, courts should consider several different factors in assessing whether the defendant’s misconduct is part of a single transaction, including whether the offenses are “based on the same conduct or arose out of the same episode.”²⁶² And New Jersey courts, in turn, have applied this “same episode” test by considering a number of additional factors, including:

[T]he nature of the offenses, the time and place of each offense, whether the evidence supporting one charge is necessary and/or sufficient to sustain conviction under another charge, whether one offense is an integral part of the larger scheme, the intent of the accused, and the consequences of the criminal standards transgressed.²⁶³

Other states similarly consider whether the defendant’s actions are causally related and whether they were temporally close.²⁶⁴ Additionally, a 2017 study found that “[t]hirteen states apply no individual test, but rather multiple factors, to prohibit successive prosecutions.”²⁶⁵ These states use some combination of several existing tests—temporal and spatial tests, “same transaction” tests, evidentiary/same-elements tests, and others—to carry out a more open-ended, multifactor inquiry.²⁶⁶

To conclude, different states diverge radically in their approach to protecting against double jeopardy. Nevertheless, a few relevant factors stand out as particularly relevant. Some factors hinge on the defendant’s conduct: the spatial and temporal proximity of the defendant’s acts; whether they fit into a larger episode or transaction; and the nature of the causal relationship between each of them. A second set of factors look at the legal directives that were violated—do these provisions share the same elements and require the same evidence to establish guilt? A third category of factors lean more broadly on the defendant’s intent and the consequences of the defendant’s conduct.

2. Civil Procedure

The rule of permissive joinder, codified in Rule 20 of the Federal Rules of Civil Procedure, provides that multiple plaintiffs may join in one action if (1) they assert a right to relief arising out of the “same transaction, occurrence, or series of transactions or occurrences,” and (2) “any question of law or fact common to all plaintiffs will arise in the action.”²⁶⁷ A similar rule of permissive joinder applies when multiple defendants face actions arising out of a single series of occurrences and involving questions of law and fact common to all defendants.²⁶⁸ Rule 20 is permissive in that it does not compel joinder even in circumstances that satisfy its requirements.²⁶⁹

As a general matter, the rule of permissive joinder is applied liberally and flexibly. The Ninth Circuit, for instance, has adopted a liberal approach in an effort “to promote trial convenience and to expedite the final determination of disputes, thereby preventing multiple lawsuits.”²⁷⁰ And the Supreme Court has clarified that “[u]nder the Rules . . . joinder of claims, parties and remedies is strongly encouraged.”²⁷¹ It is also important to note that joinder is a procedural device and does not affect the substantive rights of the parties.²⁷² Hence, a judgment for or against one party need not lead to a similar outcome for another party in a joined action.²⁷³

More concretely, the first requirement under Rule 20—that the disputes arise out of the same series of occurrences—is most relevant for our current purposes. This requirement appeals to an open-ended assessment of the parties’ entire course of conduct. But, consistent with the flexible spirit animating Rule 20, courts have largely balked at developing “one generalized test” for identifying a single transaction or occurrence.²⁷⁴ Instead, courts leverage a case-by-case approach to examine whether the events at stake are all logically related and thus constitute a single series of occurrences.²⁷⁵ This logical-relationship test defies any rigid formulation and is flexible by design. Moreover, some courts complement the logical-relationship test with a variation of the evidentiary standard that criminal courts employ under the double jeopardy rule. They do so by asking whether different legal actions would lead to “overlapping proof and duplication in testimony.”²⁷⁶ When such overlap is likely, courts are more inclined to find that the claims arise out of the same transaction or occurrence.

Given the flexible nature of the permissive-joinder inquiry, it is hardly surprising that courts sometimes find that events stretching over many years could nonetheless be sufficiently connected to warrant joinder. One example is Burton v. American Cyanamid.²⁷⁷ In Burton, the plaintiffs alleged harm as a result of ingesting lead as children, arguing that their injuries over the years constituted a single series of occurrences that resulted from the defendants’ negligence in manufacturing, promoting, and selling lead paint.²⁷⁸ The court agreed and ordered joinder.²⁷⁹ In another case, a federal court ordered joinder of more than 400 defendants in an action involving some 400 separate insurance and retirement plans, finding that the claims, while addressing many different plans and defendants, all arose from the same series of transactions or occurrences.²⁸⁰ The rules of permissive joinder, in short, rest on a flexible standard and are thus applied somewhat liberally.

3. Immigration

Questions about the defendant’s course of conduct also crop up under the Immigration and Nationality Act.²⁸¹ The Act renders an alien deportable if, at any point after admission, they are convicted of two or more crimes of moral turpitude not arising out of a “single scheme of criminal misconduct.”²⁸² One of the central questions in this context is whether the alien’s convictions could be characterized as arising out of a single scheme of misconduct. While the statute does not define the phrase “single scheme of . . . misconduct,”²⁸³ some early authorities have suggested that a variety of factors might play into an analysis of the alien’s conduct, including the time and purpose of the crimes, the methods and procedures used, the identity of the participants, and the identity of the victims.²⁸⁴

Nonetheless, clouds of uncertainty enshroud the single scheme exception. Some circuit court cases, as well as decisions issued by the Board of Immigration Appeals (“B.I.A.”), take a restrictive approach. They do so by suggesting that, to qualify for the “single scheme” exception, the alien’s crimes must be temporally close.²⁸⁵ Likewise, the First Circuit has stated that a single scheme “must take place at one time; there must be no substantial interruption that would allow the participant to disassociate himself from his enterprise and reflect on what he has done.”²⁸⁶ These authorities come close to equating a “single scheme” with a “single act”—a uniform, “temporally integrated episode of continuous activity.”²⁸⁷

Other courts, by contrast, find that separate crimes committed under a preconceived plan—even if the two crimes were days apart—could qualify as a single scheme of misconduct.²⁸⁸ These courts suggest that two crimes executed in pursuit of a common plan could constitute a single scheme.²⁸⁹ And while this “common plan” approach has been rejected by the B.I.A. and the First, Fourth, Fifth, Seventh, and Tenth Circuits,²⁹⁰ it has been adopted to varying degrees by the Second, Third, and Ninth Circuits.²⁹¹ As a consequence, there remains a great deal of disagreement and confusion as to the scope of the “single scheme” exception.

* * *

In summary, each of the doctrines canvassed above seems to lend some support to the suggested framework. Each seeks to identify the circumstances under which a series of wrongful actions might give rise to a single transaction, episode, or scheme. And each appears to mobilize a case-by-case approach. Courts applying these doctrines often consider both the specific attributes of the defendant’s actions and the consequences associated with the larger scheme.

At the same time, it would be a mistake to overstate the significance of this cross-disciplinary survey. The preceding discussion does not aim to provide a fully exhaustive synthesis of three discrete bodies of law. Rather, it seeks only to highlight a few rough, high-level sources of inspiration that could bear in some loose sense upon the proposed framework.

C. Application

Copyright’s per-work scheme has been the source of much anguish. It tends to produce grossly excessive awards, and it discourages courts from properly developing modern copyright law. A better framework, I argue, would empower courts to look beyond the number of infringed works and focus instead on the defendant’s entire course of conduct. When a series of separate infringing acts can be traced to a single, larger infringement episode, courts should be able to issue only a single statutory award—regardless of how many works are at issue.

But how might courts evaluate the defendant’s course of conduct? In what follows, I map out a number of relevant factors that courts should consider, including the spatial and temporal nature of the defendant’s actions; whether the evidence supporting one infringement is necessary or sufficient to sustain liability for another; whether the defendant’s actions were executed in pursuit of a common plan or a larger creative project; and the potential consequences of a statutory award.

These factors operate along three interrelated dimensions: conduct/evidence, intent, and consequences. Some factors focus on the evidence required to distinguish between—or bring together—the defendant’s actions. A second subset of factors look to the defendant’s intent in pursuing these actions. A third subset of factors dwell on the larger consequences of the defendant’s actions.

Let us consider a few illustrative examples. Think, for instance, of Yellow Pages Photos.²⁹² A local phone book publisher, Ziplocal, licensed thousands of photos owned by the plaintiff.²⁹³ The licensing agreement authorized Ziplocal to distribute the photos to its users but prohibited the company from transferring the photos to outside companies or nonemployees.²⁹⁴ A few years later, Ziplocal subcontracted with an outside company to assist with editing the photos and producing a phone book.²⁹⁵ The plaintiff brought action for infringement, and the jury found Ziplocal liable for infringing the plaintiff’s rights in 123 individual works.²⁹⁶

The court, though, could have reasonably concluded that the 123 infringed works were all implicated in a single scheme—a commercial effort by the defendant to produce a phone book. Perhaps more crucially, it seems as though both parties understood the defendant’s actions to constitute a single episode. The plaintiff, after all, never identified with any degree of specificity the circumstances under which particular works were infringed.²⁹⁷ The plaintiff did not bother to break down the broader episode into smaller, concrete actions that the defendant carried out.

This becomes all the more apparent when the case is assessed against the same-elements/same-evidence question: Is the evidence supporting one infringement necessary or sufficient to sustain liability for another? Again, the answer here is yes. The plaintiff never adduced any evidence to separate one infringing act from another. Instead, the defendant’s liability was ultimately based on evidence relating to the broader episode rather than any particular infringing acts. Under the same-evidence test, then, the defendant’s actions could be characterized as arising out of a single infringement episode.

The same is true for some file-sharing cases, such as Tenenbaum.²⁹⁸ In Tenenbaum, the defendant was accused of illegally downloading and distributing thirty sound recordings.²⁹⁹ But, again, the plaintiffs here failed to present any evidence to distinguish among discrete actions. Consider the plaintiffs’ pretrial motion, which discusses at some length the infringed works and the plaintiffs’ process for detecting them. As the pretrial motion explains, the plaintiffs engaged an external company to assist in detecting infringement.³⁰⁰ The company was able to identify the defendant by pinpointing the IP address of his computer, and the company was also able to ascertain that the defendant had used a file-sharing software called Kazaa to illegally download sound recordings.³⁰¹ But the plaintiffs’ evidence did not identify when the infringed works were downloaded—it could only establish that, at some point, the defendant’s publicly viewable Kazaa folder contained and listed the infringed works.³⁰² So the plaintiffs could show that the defendant engaged in a long-running scheme of downloading songs via file-sharing software, but they could not identify any particular actions the defendant took at any particular point in time. The upshot, once again, is that a court may reasonably conclude that the defendant’s actions here—as reflected in the evidence presented and in the plaintiffs’ failure to identify particular acts—were reducible to a single infringement episode.

Now, to take another example, consider the case of Cariou v. Prince.³⁰³ Patrick Cariou published a book of portraits depicting Rastafarians in Jamaica.³⁰⁴ A few years later, a well-known appropriation artist by the name of Richard Prince tore out several of Cariou’s photos, altered them, and incorporated them into a series of paintings and collages that he exhibited at art galleries.³⁰⁵ Cariou sued Prince for copyright infringement, alleging that Prince had infringed his rights in dozens of separate photos.³⁰⁶ The court held that twenty-five of Prince’s artworks made fair use of the infringed photos.³⁰⁷ But let us assume, for the sake of argument, that Prince was held liable for his actions involving dozens of infringed works.

Could a court conclude that Prince’s actions arose out of, and were grounded in, a single infringement episode? The common plan test suggests a reason to think so. As the Second Circuit ultimately acknowledged, Prince’s actions were carried out in pursuit of a larger creative plan. Prince incorporated Cariou’s photos into a series of artworks displayed as part of an exhibition, called “Canal Zone,” and these works were later bound up and published in an accompanying exhibition catalog.³⁰⁸ In executing his creative vision, Prince altered the infringed photos and used them to create an exhibition that was far removed from Cariou’s original work. Prince’s exhibition “manifest[ed] an entirely different aesthetic,” turning Cariou’s serene portraits into “crude and jarring works.”³⁰⁹ So while Prince used a large number of Cariou’s works, these works were all incorporated into a larger project conveying a different brand of creative and social commentary. In other words, Prince’s actions arose out of a larger creative project—and were pursued in compliance with a preconceived plan. One could thus conclude that Prince’s infringing acts constituted a single infringement episode and may warrant only a single statutory award.

This suggests that the defendant’s intent, at least to the extent that it involves a larger creative enterprise, should inform the analysis. Why inquire into the defendant’s intent? The general idea is that the defendant’s creative motivation should matter because copyright law is fundamentally about encouraging creativity.³¹⁰ Nowhere is this more apparent than in the context of fair use. The most important factor in the fair use analysis is whether the purportedly infringing use is transformative.³¹¹ The defendant’s use is transformative when it introduces a new purpose, meaning, or message.³¹² This means that, generally speaking, injecting new creative expression into an original work is likely to be privileged as transformative.³¹³ The central point, then, is that courts should follow a similar path when adjusting damages. They should consider whether the defendant engaged with an existing work for the purpose of pursuing a new creative project—this is, after all, precisely the kind of creativity that our law seeks to foster.³¹⁴

In addition, there is another set of considerations that should bear on an assessment of the defendant’s conduct: the potential consequences of a statutory award. Here, courts need to consider two separate questions. The first is whether the defendant’s conduct prevented cost recoupment by the plaintiff. Did the plaintiff already recoup the costs of creating and distributing their works? If so, courts should be more inclined to find that the defendant’s actions derive from a single episode.

To see why, consider the dominant justification for copyright law in the United States: the incentive-access tradeoff. On this account, the copyright system provides authors with incentives to create intellectual works.³¹⁵ Because intellectual goods are non-rivalrous and non-excludable,³¹⁶ authors need some form of legal protection to prevent others from free riding on their creative efforts.³¹⁷ Without copyright protection, copyists will be able to distribute cheap copies and undercut the author’s prices. Consequently, authors will not be able to recoup the costs of producing their works, and so they may choose not to create at all.³¹⁸ Cost recoupment is central to this story. By providing authors with a legal entitlement to exclude copyists, copyright aims to ensure that authors are able to recover their costs.³¹⁹ Copyright law, then, provides authors with an economic incentive to invest in the production of intellectual works.

But copyright protection comes at a price. When a copyright owner enjoys legal exclusivity, they can increase the price they charge for access to their work.³²⁰ This means that more consumers will be priced out of the market.³²¹ And the problem runs deeper: by limiting access to existing works, copyright law runs the risk of frustrating, rather than encouraging, creativity.³²² Indeed, authors often create new works by engaging with existing ones.³²³ Therefore, if copyright law seeks to make good on its promise of encouraging creativity, it must ensure that copyrighted works are ultimately made accessible to current and future users.³²⁴ That is why copyright protection must be limited in scope and duration—it must “protect authors only to the extent necessary,”³²⁵ while allowing for “the creation of new works that build upon earlier ones.”³²⁶ To do so, our law should strike a balance between two conflicting interests: the need to incentivize authors on the one hand, and the need to ensure that works are accessible to society at large on the other.³²⁷

Consistent with this understanding of copyright law, it is crucial to figure out whether the copyright owner was able to recoup their costs. And that question should inform not only the duration and scope of copyright entitlements;³²⁸ it should also interact with the question of remedies. My core claim, in other words, is that in assessing whether to multiply the number of awards, courts should be able to confront the question of cost recoupment. If the plaintiff suffered little harm and reaped enormous profits—and if there is no risk the plaintiff might fail to recoup their costs—courts should find that the defendant’s actions constitute a single episode.³²⁹

Admittedly, the question of cost recoupment extends beyond the defendant’s immediate conduct. But assessing cost recoupment makes sense as a matter of copyright policy: it allows courts to account for the underlying objective of our system.

Finally, courts should also give pride of place to various distributional concerns. To assess whether it would be reasonable to treat the defendant’s conduct as arising out of a single scheme, courts must consider the distributional effects of an aggregate statutory award. As Bracha and Syed explain, distributional concerns should typically provoke a distinction between corporate and individual defendants.³³⁰ By and large, when the defendant is a corporation or a firm with dispersed liability, “neither distributive nor aggregation concerns are likely to prove worrying enough to require any [judicial] safeguard[s].”³³¹ However, when the defendant is a private individual, courts should ask whether a statutory award—multiplied by the number of infringed works—would “so eat into an average individual’s income or wealth”³³² as to trigger significant distributive concerns. A hefty award directed at an individual of average means may well “have serious effects in areas such as housing, health, education, and more generally the ability to make and pursue basic life choices.”³³³

It follows, then, that courts should account for the identity (and relative wealth) of the defendant in considering whether their conduct is best characterized as reflecting a single, larger event. When the defendant is a private individual of moderate means—like the defendants in Thomas or Tenenbaum—it would be more appropriate to conclude that the defendant’s actions were the product of a single episode.

In conclusion, the proposed framework turns on a number of related factors. It attends not only to the defendant’s immediate conduct, but also to some of the broader distributional and utilitarian concerns that underpin our system. In particular, it directs courts to take into account the spatial and temporal nature of the defendant’s actions; whether the evidence supporting one infringement is necessary or sufficient to sustain liability for another; whether they were executed in accordance with a common plan or a larger creative project; and the potential consequences of a statutory award.

IV. OBJECTIONS

This Part briefly considers three potential objections: that the proposed system draws inspiration from the wrong sources; that it fails to alleviate the indeterminacy that ails our law; and that it is poorly suited to the task of compensating aggrieved plaintiffs. For various reasons, none of these objections is particularly compelling. Below I explain why.

A. Doctrinal Transplants

One preliminary objection is that the doctrinal analogues I have identified above are irrelevant or otherwise inapplicable. The basic idea is that these doctrines emerged in very different settings and were designed with different goals in mind: streamlining civil proceedings, protecting criminal defendants, and demarcating grounds for deportation. These doctrines, put simply, serve different objectives, are subject to different limitations and judicial safeguards, and should not be applied to copyright lawsuits. Accordingly, it is not clear why these discrete bodies of law should bear in any meaningful sense on copyright remedies.

Yet this objection misfires for a number of reasons. One is that, as clarified above, I do not mean to suggest here that these doctrinal analogues are directly applicable to the law of copyright remedies. The point, rather, is that these doctrines could be treated as rough sources of inspiration. A doctrinal analogue is just that—an analogue. And while the proposed framework does incorporate some notable doctrines borrowed from other fields—the same-evidence test, the temporal question, and the common plan test—I nonetheless chose to pass over certain other doctrines.

I should also clarify that, in order to account for the underlying objectives of our system, I propose that we reorient some of these doctrinal analogues. Take the “common plan” test used by courts to determine whether an alien is deportable for committing two crimes of moral turpitude.³³⁴ Under this test, some courts ask whether the two crimes were executed in pursuit of a common, preconceived plan. When that is the case, the two crimes are thought to have arisen out of a “single scheme of criminal misconduct.”³³⁵ But under the framework developed here, the “common plan” test would be expanded to cover a larger creative enterprise.³³⁶ This is important because, as discussed above, modern copyright law seeks to stimulate precisely this type of creativity—namely, to allow users and authors to pursue creative projects.³³⁷ It would thus make sense for courts to evaluate the defendant’s creative motivation when calculating remedies. Even if the defendant is found to have infringed the plaintiff’s rights—such that the defendant’s conduct cannot be shielded by the fair use doctrine—we may still think it desirable to treat such infringements as less culpable so long as the defendant pursued a creative vision.

Moreover, in a broad sense, the framework envisioned here is a rather familiar one. Though the suggested system relies on a smattering of different factors, many of these factors are ones that courts already consider. It is just that courts typically do so when considering the size of the award, rather than the number of available awards. Applying these factors, then, should not require much adaptation—courts and juries have long attended to these factors anyway. Consider, for instance, the distributional issues I discussed above, which courts today sometimes assess by asking whether a large award would “put [the defendant] out of business.”³³⁸ In so doing, courts impose a proportionality requirement—a requirement that the final award not be so large or disproportionate as to put the defendant out of business. My suggestion, then, is that courts simply consider this factor in one additional context: not just when calibrating the size of the award but also when evaluating whether to issue one award or multiple ones.

So, to sum it up, my choice of looking outward for inspiration is defensible. I suggest that we do so by devising a careful and nuanced framework, one that accounts for the ultimate objectives of the copyright system. And, essentially, this system is structured around an assortment of factors that courts already consider in different contexts, both within and outside of copyright law.

B. Indeterminacy

Another objection is that the proposed system would not resolve the problem of indeterminacy. As everyone seems to agree, the caselaw is a mess. Courts issue divergent awards in similar cases and rarely offer any explanation for doing so. The caselaw, then, turns out to be inconsistent and arbitrary. And the proposed framework, in turn, does little to confront this issue. Instead, it affords courts and juries even more discretion, asking them to carry out a flexible, holistic inquiry on the basis of several unweighted factors. Won’t that make matters worse?

One possible response is that the proposed system will not make things any worse than they are now—the law is already an unmitigated disaster. As others have observed, courts tend to issue awards that are simply inexplicable, often dispensing radically different awards in similar circumstances.³³⁹ So even if my proposed system will not yield a measurable improvement in consistency, it is also unlikely my framework will make matters any worse. We’ve already hit rock bottom.

In any event, it is important to remember that a host of other issues bedevil our system. In a system driven by per-work aggregation, statutory awards can swell up dramatically.³⁴⁰ The result is that some defendants face a significant risk of excessive awards. Copyright’s per-work structure also discourages courts from developing substantive law.³⁴¹ And it is here that one can clearly see the benefits of a more flexible system: if we decouple the number of awards from the number of infringed works, at least in cases where the defendant’s conduct resulted from a single infringement episode, the twin problems of aggregation and underdevelopment are likely to diminish. Given that these problems derive from per-work remedies, we could mitigate their effects by allowing courts to break from our per-work scheme. This means that, while my approach cannot tackle all of the relevant issues, it can surely contribute to eliminating or addressing some of them.

This suggests a related point: I am not claiming here that the proposed framework is a catchall solution. Rather, my proposal must be accompanied by a suite of additional reforms designed to overhaul our remedial scheme. Many of the proposals other scholars have advanced—such as reducing the statutory range,³⁴² imposing a statutory cap,³⁴³ tying statutory damages to actual losses,³⁴⁴ and imposing sanctions on plaintiffs who make inflated claims³⁴⁵—could work in tandem with my proposed system. While these proposals seek to reorient or limit the courts’ discretion in adjusting the size of the award, my proposal would allow courts to do away with per-work damages altogether.

C. Compensation

One final objection is that the proposed scheme would make it harder for plaintiffs to obtain compensation for the actual harm they suffered. As noted above, most copyright scholars agree that courts are insufficiently attentive to the rationales underlying statutory damages.³⁴⁶ And while it is clear that Congress intended for courts to award enhanced damages only in a narrow subset of “exceptional cases”—those involving large-scale infringement or repeat transgressors—it is also clear that, in most other cases, statutory damages were meant to serve a largely compensatory role.³⁴⁷ Thus, with one limited exception, statutory damages were meant to ensure that copyright owners would be compensated for their losses.

Yet there is a problem lurking beneath the surface: if statutory damages were engineered to serve a compensatory role, courts would have to account for the number of infringed works. After all, each work represents a distinct source of harm.³⁴⁸ A copyright owner will often charge a licensing fee for access to each of their works. To account for the plaintiff’s lost fees, then, the court will have to take stock of each and every work at issue. My proposal, however, could frustrate this process. By severing the connection between the number of awards and the number of works, the suggested system threatens to deny plaintiffs the opportunity to obtain proper compensation for their actual damages.

But is that really the case? As I have emphasized before, there is more than one way to compensate a copyright holder for the harm they sustained.³⁴⁹ One way is to adjust the number of awards based on the number of infringed works. But there is another possibility, and perhaps an equally effective one: “control[ing] for the number of infringed works by increasing or reducing the size of the aggregate award” within the statutory range.³⁵⁰ Courts and juries have at their disposal an incredibly robust statutory range stretching from $200 to $150,000, depending on the type of case at hand. And they can increase or reduce the total award within that range based on the number of works infringed and the defendant’s level of culpability.

For example, suppose the defendant copied three of the plaintiff’s photos. Now suppose that the plaintiff typically charges a licensing fee of $1,000 for each of their photos, meaning that the plaintiff’s total loss is $3,000. In adjusting the award, the court can pursue one of two possibilities: it can issue three separate awards of $1,000 each; or, alternatively, the court can dispense a single, aggregate award in the amount of $3,000. In other words, the court should be able to ensure full compensation by calibrating a single, aggregate award within the statutory range.

Nevertheless, there is an additional wrinkle here: if courts are to rely on a single, aggregate award, the statutory range has to be sufficiently broad to accommodate cases involving a large number of works or a small number of particularly valuable ones. To be sure, there may be cases where so many works are at stake—hundreds or even thousands—that a single award, even at the statutory maximum of $150,000, simply won’t do. For example, if the defendant copied 5,000 songs, each valued at $50, the plaintiff’s total loss would amount to $250,000 (5,000 x $50). This means that a single award of $150,000 simply wouldn’t suffice. Or imagine a case implicating 25 works, each valued at $10,000—again, a total loss of $250,000 would exceed the statutory maximum. What this suggests is that the statutory range must be robust enough to accommodate an array of possible scenarios.

These concerns, however, are overblown. First, even under the proposed approach, courts may nonetheless find that a mass-infringement event does not qualify as a single infringement episode. Perhaps such an event would be better described as a series of separate episodes, each warranting an additional statutory award. Exceptional cases call for exceptional remedies. Second, there is good reason to believe that such cases would be vanishingly rare. The vast majority of copyrighted works command little market value, if any, and the current statutory range would likely be sufficiently broad to ensure proper compensation in a large majority of cases.³⁵¹ In a sense, any concrete cap on the amount of damages would be arbitrary—we simply have to draw the line somewhere. But given that most works have little value, the current statutory limit seems more than sufficiently robust to accommodate the typical infringement case.

CONCLUSION

The law of statutory damages is in a state of disrepair. It often produces “arbitrary, inconsistent, unprincipled, and grossly excessive awards.”³⁵² Courts command “a contested, somewhat obscured, and even outright confused” understanding of copyright’s remedial system.³⁵³ And statutory damages are susceptible to pervasive “overclaiming” across “virtually all areas of copyright law.”³⁵⁴ But most reform proposals to date have papered over the real issue. So entwined are statutory damages in our copyright system that any attempts at serious reform may seem hopeless. And although commentators uniformly agree that statutory damages present a problem of colossal proportions, they have not yet been able to tackle the core problem: per-work damages.

This Article attempts to do just that. It seeks to jumpstart a conversation about structural reform and offer a roadmap for legislative and judicial action to confront the risk of inflated damages. It proposes, in short, that we do away with per-work damages altogether. It develops an alternative system that would accord judges a significant degree of discretion to look beyond the number of infringed works. Courts could do so by examining whether the defendant’s actions are collectively attributable to a larger infringement episode. When the defendant’s conduct arises out of a single episode, courts should issue only a single statutory award—no matter how many individual works are at issue. If adopted, this system would reduce the risk of excessive awards, prompt courts to properly adjust damages, and introduce a degree of pragmatism into our system.

This framework may seem radical. That is so in part because it appears to mandate a sharp break from a centuries-old system of per-work damages. But, in a sense, the proposed system is, in fact, a familiar one—after all, courts have forged similar doctrines to address analogous problems across a variety of otherwise distinct areas of law, including criminal law, civil procedure, and immigration law.

In the end, this Article envisions a world without per-work damages. What distinguishes the proposed system from other proposals is that it takes seriously the core issue: per-work remedies make it too easy for courts and juries to aggregate damages in ways that lead to outlandish awards. After thirty years of faint-hearted debates, it is well past time that policymakers try something different.

97 S. Cal. L. Rev. 1029

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Shani Shisha*

* Assistant Professor, SMU Dedman School of Law; Fellow, Berkman Klein Center for Internet & Society, Harvard Law School, 2021–22. For valuable feedback and generative conversations, I thank William Fisher, William McCoy, Guy Rubinstein, Brian Soucek, Oren Tamir, and Rebecca Tushnet. I received helpful comments from participants at the Harvard Law School Art of the Response Paper Workshop. I am also grateful to Vice Dean Gabriella Blum and Assistant Dean Catherine Peshkin for providing institutional support for this project. I am indebted to the editors of the Southern California Law Review, particularly Madeline Goossen, Ariana Croll, Mariem Masmoudi, Carus Newman, and Chloe Williams, for superb editorial work. Finally, I would like to thank the Harvard Law School Graduate Program for generous financial support.

Cy Pres in Class Action Settlements – Article by Rhonda Wasserman

November 2014February 2018Katy Carlyle

From Volume 88, Number 1 (September 2014)
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Monies reserved to settle class action lawsuits often go unclaimed because absent class members cannot be identified or notified or because the paperwork required is too onerous. Rather than allow the unclaimed funds to revert to the defendant or escheat to the state, courts are experimenting with cy pres distributions—they award the funds to charities whose work ostensibly serves the interests of the class “as nearly as possible.”

Although laudable in theory, cy pres distributions raise a host of problems in practice. They often stray far from the “next best use,” sometimes benefitting the defendant more than the class. Class counsel often lacks a personal financial interest in maximizing direct payments to class members because the fee is just as large if the money is paid cy pres to charity. And if the judge has discretion to select the charitable recipient of the unclaimed funds, she may select her alma mater or another favored charity, thereby creating an appearance of impropriety.

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Are Damages Different?: Bivens and National Security – Article by Andrew Kent

July 2014February 2018Sylvia Zaich

From Volume 87, Number 5 (July 2014)
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Litigation challenging the national security actions of the federal government has taken a seemingly paradoxical form in recent years. Prospective coercive remedies like injunctions and habeas corpus (a type of injunction) are traditionally understood to involve much greater intrusions by the judiciary into government functioning than retrospective money damages awards. Yet, federal courts have developed and strictly applied doctrines barring Bivens damages actions against federal officials because of an asserted need to preserve the prerogatives of the political branches in national security and foreign affairs. At the same time, the courts have been increasingly assertive in cases involving coercive remedies, especially habeas, that have dramatically impacted post-9/11 national security policies. Additionally, federal courts, particularly the Supreme Court, are increasingly willing to rule against the executive in cases concerning justiciability and judicial power.

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Due Process and Punitive Damages: The Error of Federal Excessiveness Jurisprudence – Article by A. Benjamin Spencer

July 2006February 2018Southern California Law Review Admin

From Volume 79, Number 5 (July 2006)
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The Supreme Court, in a line of several cases over the past decade, has established a rigorous federal constitutional excessiveness review for punitive damages awards based on the Due Process Clause. As a matter of substantive due process, says the Court, punitive awards must be evaluated by three “guideposts” set forth in BMW of North America v. Gore: the degree of reprehensibility of the defendant’s conduct, the ratio between punitive and compensatory damages, and a comparison of the amount of punitive damages to any “civil or criminal penalties that could be imposed for comparable misconduct.” Following up on this pronouncement in State Farm Mutual Automobile Insurance Company v. Campbell, the Court indicated that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” Unfortunately, neither the “guideposts” nor the single-digit multiple rule have any basis in the law of due process and represent nothing more than the imposition of the Court’s own standards for punishment in place of those of the states.

This Article reveals the defectiveness of this jurisprudence by exposing the absence of precedential foundation for the Court’s current view. More significantly, this Article demonstrates that the Court’s interpretation of the Due Process Clause is at odds with important rules of constitutional construction, mainly those supplied by the Ninth and Tenth Amendments, which protect unenumerated rights and limit the national government to exercising delegated powers, respectively. Together, these amendments prohibit expansive interpretations of the Constitution that disparage rights retained by the people and that arrogate to the national government powers that neither the states nor the people ever relinquished. The Court’s interpretation of the Due Process Clause with respect to punitive damages transgresses both of these limitations. This Article suggests that a proper understanding of due process reveals that the doctrine requires only that punitive awards be reserved for wrongdoing beyond simple negligence, jurors be instructed that any punitive award they impose must be designed to further states’ legitimate interest in punishment of instate conduct and deterrence, and judicial review of the awards be available to check adherence to these requirements. Beyond that, the Due Process Clause fails to require punitive damages awards be constrained to a particular level.

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INTRODUCTION

I. FOUNDATIONS OF SPECIAL EDUCATION LAW

A. History of IDEA

B. Inside IDEA

1. IDEA Requirements and Procedural Framework

2. State Responsibilities Under IDEA

3. Section 1415(l): IDEA Exhaustion Requirement

C. The ADA and Section 504 of the Rehabilitation Act

II. JUDICIAL MILESTONES IN SPECIAL EDUCATION

III. PEREZ V. STURGIS PUBLIC SCHOOLS: A TURNING POINT IN DISABILITY RIGHTS ADVOCACY

A. Discussion of Perez v. Sturgis Public Schools

B. Perez’s Impact on Special Education Litigation

IV. BEYOND PEREZ: IMPLICATIONS AND CHALLENGES IN SPECIAL EDUCATION POLICY

A. Implications of the Perez Decision

B. Challenges in Policy Implementation and Compliance

C. Strategic Approaches and Systemic Changes in Special Education

CONCLUSION

98 S. Cal. L. Rev. 473

INTRODUCTION

I. PROTESTER INJURIES AND GOVERNMENTAL IMMUNITIES

A. Protesters’ Rights and Remedies

B. Section 1983 and “Qualified Immunity”

C. Municipal Liability

D. First Amendment “Retaliation” Claims

E. Damages Claims Against Federal Officials

II. STUDY DESIGN AND DATASETS

III. DATA AND FINDINGS

A. Section 1983 and Qualified Immunity

1. Qualified Immunity Dataset: Overview

2. First Amendment Claims

i. Types of Claims

ii. Claims Disposition Data

iii. First Amendment Law and Protesters’ Rights

3. Fourth Amendment Claims

i. Types of Claims

ii. Claims Disposition Data

iii. Fourth Amendment Law and Protesters’ Rights

B. Municipal Liability – Monell Claims

C. First Amendment Retaliation Claims

D. Claims Against Federal Officials

IV. STRENGTHENING PROTESTER RIGHTS AND REMEDIES

CONCLUSION

97 S. Cal. L. Rev. 1583

INTRODUCTION

I. A TALE OF TWO WOES

A. Strict Liability

B. Statutory Damages

II. STATUTORY DAMAGES IN ACTION

A. Justifications

B. Predictability and Consistency

C. Excessive Awards

D. The Copyright Wasteland

III. TOWARD STRUCTURAL REFORM

A. Overview

B. Doctrinal Analogues

1. Criminal Law

2. Civil Procedure

3. Immigration

C. Application

IV. OBJECTIONS

A. Doctrinal Transplants

B. Indeterminacy

C. Compensation

CONCLUSION

97 S. Cal. L. Rev. 1029

From Volume 88, Number 1 (September 2014) DOWNLOAD PDF

From Volume 87, Number 5 (July 2014) DOWNLOAD PDF

From Volume 79, Number 5 (July 2006) DOWNLOAD PDF

From Volume 88, Number 1 (September 2014)
DOWNLOAD PDF

From Volume 87, Number 5 (July 2014)
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From Volume 79, Number 5 (July 2006)
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