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Current frameworks for compensating victims of police violence inadequately address collective healing and repair. Overlooked are those who suffer policing’s harmful effects without direct police contact, e.g., bystanders and family members of those directly impacted. Consider 17-year-old Darnella Frazier, who documented George Floyd’s murder by Minneapolis police and subsequently required her mother’s comfort to sleep through the resulting trauma. While strangers far and wide rallied to support her healing through GoFundMe donations, most indirect victims receive no such widespread support. Typically, bystanders traumatized by police violence must rely solely on their families and local communities—often the same race-class subjugated circles that experience policing’s worst excesses. This Essay proposes a new direction: when local governments breach Fourth Amendment guarantees, liability should include damages for communal harms, or what I call “reparative” damages.

Section 1983 was intended to be strong medicine for the enduring problem of state-enabled racialized violence in the United States. Reconstruction lawmakers recognized that such violence left entire communities under siege, so they responded with unbounded federal power to address these harms. As the 2020 uprisings spotlighted, police violence today similarly harms entire communities, particularly Black and Brown ones. Yet current remedial schemes fail to capture these broader harms. I propose that at the damages stage of a successful Fourth Amendment suit against cities under Section 1983, courts should aim to repair policing’s collective harms by considering five factors in awarding compensation: (1) the police department’s overall budget; (2) evidence of historically troubling or abusive departmental practices; (3) annual frequency of excessive force litigation against the department; (4) existence of any consent decrees governing the department; (5) if applicable, the department’s compliance with decree requirements. When a department demonstrates a troubling history, faces numerous constitutional claims, operates under consent decrees, and shows minimal reform progress, courts could reasonably conclude it inflicts systemic harm on the community it is supposed to serve, warranting reparative damages.

Rather than awarding damages to individual plaintiffs, courts would direct compensation to a community reparative fund—a hybrid model incorporating key features of both Victims Compensation Funds (VCF) and cy pres distributions. People harmed by police in that locality could thereafter apply to the program for compensation. Self-certification would enable anyone who could credibly establish that they were vicariously harmed by police to receive compensation. Embracing a dynamic approach to statutory interpretation, this approach aligns with Section 1983’s sweeping remedial vision and meets the equity demands of our time. And because the judiciary has played a principal role in enabling police violence by manufacturing stringent immunity doctrines and eroding the Fourth Amendment, enlisting courts to make collective amends for policing’s harms has stronger moral force than a legislative approach.

In mass tort multidistrict litigation (MDL), existing scaling-up devices have failed to generate significant efficiency gains. This essay suggests a novel device: issue presumption. Where courts possess the greater power to apply issue preclusion, courts may instead apply issue presumption to shift the burden of persuasion against the losing party in subsequent cases. By scaling up through this softer, more flexible approach, MDL courts can capture lost efficiency gains.

The most common form of vicarious liability subjects an employer (or principal) to liability for the torts an employee (agent) commits within the scope of employment. Under the motive test, an employee’s tortious misconduct is outside the scope of employment when wholly motivated by personal reasons—a rule that almost invariably prevents the victims of sexual assaults from recovering against the employer, regardless of whether the employment relationship created the conditions that enabled the employee’s wrongdoing. A few alternative approaches have reformulated vicarious liability to overcome the limitations of the motive test, which is based on agency law, but each one has largely foundered. The motive test rules the land.

Neither courts nor commentators have adequately considered whether vicarious liability can be reformulated in terms of basic tort doctrine independently of agency law. As a matter of established tort principles, the scope of vicarious liability is limited to the injuries caused by a tortious risk—one which the employment relationship foreseeably created. The tort formulation recognizes that the employment relationship creates a foreseeable risk that employees will be careless or overzealous and can commit torts while motivated to serve the employer, even if the employer did not authorize the tortious misconduct. When an employee’s unauthorized tortious behavior is motivated solely by personal reasons, it would still be foreseeable and within the employer’s scope of vicarious liability if the employment relationship elevated the foreseeable risk of such misconduct over the background level of risk that exists outside of the workplace. Sexual assaults can accordingly be foreseeable within certain types of employment settings, subjecting the employer to vicarious liability as a matter of basic tort doctrine.

The problem of sexual assaults in the workplace shows why the tort formulation
of vicarious liability relies on a more realistic account of employee behavior as
compared to its agency counterpart, which cannot persuasively explain why vicarious
liability applies to any form of employee behavior the employer did not authorize.
Vicarious liability is best formulated as a doctrine of tort law, not as a component of
agency law with its question-begging treatment of motive in the workplace.

The law of armed conflict has a built-in accountability gap. Under international law, there is no individualized remedy for civilians whose property, bodies, or lives are destroyed in war. Accountability mechanisms for civilian harms are limited to unlawful acts: Individuals who willfully target civilians or otherwise commit serious violations of international humanitarian law may be prosecuted for war crimes, and states that commit internationally wrongful acts must make reparations under the law of state responsibility. But no entity is liable for lawful but unintended harmful acts—regardless of how many or how horrifically civilians are hurt. This Article proposes developing an international “war torts” regime, which would require states to pay for both lawful and unlawful acts in armed conflict that cause civilian harm. Just as tort and criminal law coexist and complement each other in domestic legal regimes, war torts and war crimes would overlap but serve different aims. Establishing war torts and creating a route to a remedy would not only increase the likelihood that victims would receive compensation, it would also create much-needed incentives for states to mitigate or reduce civilian harms. Ultimately, a war torts regime would further the law of armed conflict’s foundational purpose of minimizing needless civilian suffering.