Some Congressional Republicans Are Attempting to Kill Civil Rights Cases
by Joshua Brownlee
Some Senate and House Republicans are quietly advocating legislation that could destroy modern civil rights cases. These cases are critical to defending liberties protected under First, Second, Fourth, Fifth, and Eighth Amendments of our Constitution. All political parties have an interest in protecting basic liberties that give rise to the motto “land of the free”. When we talk about a civil rights case, we’re referring to a complaint filed under 42 U.S. 1983 (commonly referred to as “1983 cases”). 42 U.S. 1983 stems from the Klu Klux Klan Act of 1871. Simply put, a 1983 violation occurs when a government agent acts through their authority and violates an individual’s constitutional rights or rights protected by the law. (read full text of 42 USC 1983). Technically when anyone’s rights are violated, they can sue for money damages incurred by the violation. Standards and procedure have been put into place over the years by Courts and Congress to make litigation more “efficient” and to discourage weak or frivolous claims. The judicial mine field can destroy even a valid 1983 case. 1983 litigation is the judicial vehicle for an individual to protect their rights (whether its free speech or protecting the right to have a firearm).
1983 Plaintiffs are up against well organized Defendants (like a police department or municipality). It became clear in the 1950’s and 60’s, that one of the greatest problems in civil rights cases was finding lawyers to bring valid claims. Plaintiffs who represent themselves (also known as pro se plaintiffs) are held to the same standards as lawyers in proving and advocating their case. There’s no special treatment for non lawyers. This means a pro se plaintiff is expected to know the rules of evidence, procedure, and case law. Many people who are the victims of government abuse are not rich and well versed in litigation practice. Sadly governments often abuse or take advantage of people that lack the capacity to fight back.
In order to ensure that not just the rich and privileged had their constitutional rights protected, President Ford (a Republican) signed the Civil Rights Attorneys Fees Awards Act of 1976 into law. It’s worth noting that a few Senators from Southern states launched a seven day filibuster to kill the bill. Lucky for civil rights, the bill passed and is now incorporated into 42 U.S.C. 1988 which allows for reasonable attorney’s fees for a prevailing party in a 1983 case. Since 1976, small firms (like mine) can bring 1983 actions for people all over the country. Without attorneys fees, small firms would be forced to leave the practice area of civil rights to nonprofits (like ACLU and Southern Poverty Law Center) or big law firm’s pro bono department. Both nonprofits and pro bono work have limited resources. Do we really want to depend on the good graces of giant law firms?
If a few Republicans in Congress have their way, attorney’s fees for civil rights cases will start to change. Some extreme conservatives are currently backing two bills Senate Bill 1134 and House of Representatives Bill 2437. They’re identical bills that alter attorneys fees for civil rights cases, and their cloaked in the need for law and order. The Bills are commonly referred to as The Back the Blue Act of 2017. The proposed legislation removes attorney fees if they’re related to an incident where a plaintiff more likely than not committed a violent crime or felony. (click here to read S. 1134). There are two glaring problems with the proposed bill. First if a police officer makes an arrest they don’t get to automatically kick the crap out of a suspect just because a crime probably happened. Second, this legislation will encourage officers to bring violent crime or felony charges anytime police are afraid they committed a constitutional violation.
Walk through this scenario: You’re walking down the street going to a protest/support a cause you believe in (think of an issue you believe in). You look over and see a good friend (stop for a moment and think of a name and face to give this person). Now imagine your friend is getting beaten by a large man who obviously opposes your issue. Your friend’s nose is bleeding and is lying on the ground getting kicked. You rush to your friend’s aid and hit the man kicking your friend. Police show up and both you and your friend surrender peacefully. You are taken next to a police car and officers start punching you when you ask for a lawyer. The officers think you’re a drug dealer and start asking “where are the drugs?” Another officer comes up to you and violently searches you, he takes your cell phone out of your pocket and throws it on the ground. You angrily say “I have a right to call a lawyer!”. The officer crushes your phone with his heal and says “sue me shit bag”.
Your friend is taken to the hospital because the police beat him so badly and you go to jail. After you bond out, you complain to the police department’s internal affairs. You also file an open records request and find out there have been a number of complaints against these officers for excessive force. After a six month investigation you get a very nice letter from internal affairs saying “thank you for your concern, but there wasn’t enough evidence to sustain the complaint.” No officer discipline.
You go to the District Attorney. Little do you know, those officers have arrested a lot of drug dealers with their aggressive tactics. At best you get the case in front of a grand jury who is then persuaded by the prosecutor that there isn’t enough evidence to go forward.
You try the Federal Justice Department’s Civil Right’s Division. Unfortunately, Attorney General Sessions has made it perfectly clear that the Justice Department will leave constitutional violations to local law enforcement for the foreseeable future. (read Attorney General Sessions’ policy on monitoring police).
Determined to protect your rights, you and your friend decide to go to a lawyer. The police department paid your friend’s medical bills from his two day stay in the hospital. Your friend was acquitted based on self defense but a judge held there was probable cause to arrest. Your case was dismissed. The lawyer asks you “how much was your phone worth?” You say “$400.00, but that’s not the point! They violated my rights, they beat the hell out of us for no reason!” The lawyer looks sad and says “yes they clearly did, but I can’t take a two year litigation project for 40% of $400.00. You can try ACLU or Southern Poverty Law Center, but their attorneys are overloaded because of their caseloads. If you want to hire me, I’ll give you a fee reduction but it will still be $2,000.00 retainer and $150.00 an hour.” You heard the lawyer say two years, “excuse me but how much will a two year litigation cost?” The lawyer looks sad again “to investigate, write and file a complaint, survive 12b6 attacks, sovereign immunity attacks, file interrogatories, request for admissions, basic discovery, depositions, summary judgment motions, summary judgment hearings, trial preparation, and then actual trial? It will probably be between $50,000.00 to $100,000.00 because it will be two years of litigation.” Your eyes bulge and your draw drops “but why is it so expensive?!” The lawyer leans in “because the system wants you to lose, because processes and legal tests have been put in place like 12b6 which are designed to kill your claim before you get in front of a jury.” You get angry “But I’m right! My case should survive those things!” The lawyer leans back again, “yes, I think it would, but do you know the elements of your claim and standards to survive 12b6? Do you know what to put in a preservation letter or ante litem notice? I do, because this is my career, it’s not a hobby.”
Pretend this actually happened yesterday to you or someone you love, do you have $2,000.00 right now to pay a lawyer’s retainer for such a blatant constitutional violation? Most people would say “no.” Now imagine you work 40-50 hours a week and you’re lucky to have a few hundred dollars at the end of the month. Are you ready to commit to two years of litigation and attorney fees? You realize, the police are betting you won’t, because you look poor. Plus, you have to buy a new phone.
S. 1134 and H.R. 2437 gives a green light for police to use excessive force because the police are only liable for actual costs. For actual damages S. 1134 states:
in any action seeking redress for any deprivation that was incurred in the course of, or as a result of, or is related to, conduct by the injured party that, more likely than not, constituted a felony or a crime of violence (as that term is defined in section 16 of title 18, United States Code) (including any deprivation in the course of arrest or apprehension for, or the investigation, prosecution, or adjudication of, such an offense), a court may not award damages other than for necessary out-of-pocket expenditures and other monetary loss.
Back the Blue Act of 2017, S. 1134, 115th Cong. (2017) (emphasis added). S. 1134 then goes on to address attorney fees:
in any action seeking redress for any deprivation that was incurred in the course of, or as a result of, or is related to, conduct by the injured party that, more likely than not, constituted a felony or a crime of violence (as that term is defined in section 16 of title 18, United States Code) (including any deprivation in the course of arrest or apprehension for, or the investigation, prosecution, or adjudication of, such an offense), the court may not allow such party to recover attorney’s fees.
Id. (emphasis added). Many may say “most officers are good and the few bad apples still have to be accountable to the law”. It’s true most police officers are good and honorable, not all police are sentinels of liberty. And by that I mean 15% (at least) are bad news. I think about all the jobs I’ve had in the past (lawyer, restaurant server, U.S. Marine, barista, dishwasher, library assistant, telemarketer, fry cook). In every job, at least 15% of the people who did that job were horrible (as a fry cook my food was either half frozen or burned). To say 15% of police are bad, is just admitting that cops are human beings. The 15% can do a lot of damage in any profession, especially if they start to rise in the ranks and promote other bad workers. Large cities employ thousands of police officers (often with poor pay). The City of Atlanta for example has approximately 2,000 police officers. If 15% of Atlanta Police Officers are bad cops, that’s 300 bad police officers. That’s just individuals, we’re not even talking about unconstitutional policy or procedures. For example, even good cops get caught up in bad habits. What does a well intentioned rookie do when he is told by well respected superior to “stop and frisk” all black males in a particular neighborhood? If everyone else is doing it, there must be a reason right?
Unconstitutional behavior gets changed by challenges in the court room. It’s important to remember, 1983 cases aren’t after good police. Attorneys fees are not awarded for bad cases, fees are awarded in cases where the Plaintiff prevails. Meaning the Plaintiff survived the two year marathon of process and procedure. If a Plaintiff and their lawyer make it through the gauntlet of the judicial system that means constitutional rights were violated by the government. Under such circumstances, don’t we want to deter future violations? Don’t we want to properly compensate the Plaintiff and their lawyer for protecting the fundamental ideals of our Republic? Attorney fees encourage an adversarial system that can push back against a corrupt or abusive government official/policy.
Regardless of political party, we can all agree that social and economic class should not be determining factors of whether a person has the ability to defend their civil liberties.