Standing in the Dark

Authors

Sharon Brett

Abstract

Demonstrating standing for injunctive relief in § 1983 police misconduct cases is undisputedly difficult for civil rights plaintiffs. Under City of Los Angeles v. Lyons, plaintiffs seeking injunctions must present more than evidence of past misconduct; they must show a significant ongoing risk that they will experience the same misconduct again. Scholarly attention to Lyons has focused primarily on doctrinal errors in the Court’s legal analysis, and for good reason. But the case raises another important yet overlooked question: Can civil rights plaintiffs realistically demonstrate risk of future harm given (a) the limited data kept by law enforcement about their own activities, and (b) procedural barriers to obtaining that data, even with broad civil discovery?

The answer is, in most cases, no law enforcement record-keeping practices, combined with various procedural rules and doctrines that constrain discovery, make meeting the Lyons standard exceptionally difficult. The asymmetry between what plaintiffs must show to demonstrate standing for an injunction, on the one hand, and what evidence is practically available at various procedural stages, on the other, often results in dismissal of injunctive relief claims. Plaintiffs seeking institutional reform of the police through litigation are “standing in the dark:” They must attempt to prove standing without the information necessary to do so. Rather than promoting federalism, as Lyons claims, the decision diminishes the role of the judiciary as a check on state actors’ repeated abuse of power.

In this paper, I argue that the incongruence between equitable relief standing doctrine and the existence and availability of law enforcement records provides a practical, rather than doctrinal, reason for the Court to revisit Lyons and the rights-constraining impact that case has had. By introducing a typology of post-Lyons cases and exposing flaws in police record-keeping practices and various doctrinal rules preventing disclosure of the limited records that do exist, I set out exactly why the Lyons standard has proved mostly unobtainable, and what we can do about it. In the absence of complete abrogation of Lyons—an unlikely event—I propose other possible interventions, including state and federal legislative and rule reforms aimed at increasing documentation and transparency of police activity

Rights

© 2025 Brigham Young University Law Review

Recommended Citation

Sharon Brett, Standing in the Dark, 51 BYU L. Rev. 1 (2025).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol51/iss1/10