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Abstract

Judicial and scholarly descriptions of the deterrent power of civil rights damages actions rely heavily on the assumption that government officials have enough information about lawsuits alleging misconduct by police officers that they can weigh the costs and benefits of maintaining the status quo. But no one has looked to see if that assumption is true. Drawing on extensive documentary evidence and interviews, this Article finds that officials rarely have much useful information about suits alleging misconduct by their officers. Some departments systematically ignore information from suits. Technological kinks, employee error, and blatant efforts to sabotage combine to undermine other departments’ limited efforts to gather information. Yet, those law enforcement agencies with systems to gather and analyze probative data have used that information to reduce the likelihood of future misconduct. Just as informational regulation has been used to improve corporate, medical, and financial behavior, more robust and effective information policies and practices can increase the impact of lawsuits on law enforcement behavior. In the meantime, however, descriptions of deterrence—and the prescriptions that follow—must be recalibrated to reflect the current relationship between litigation, information, and decisionmaking.

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