Section 1983 Litigation for Criminal Defense Lawyers

A criminal defense lawyer recently e-mailed me to celebrate a rare pre-trial victory: He had won a motion to suppress under the Fourth Amendment. After congratulating him, I asked, “Are you going to file a Section 1983 lawsuit?” He was perplexed.

Title 42 U.S.C. 1983 does not provided substantive rights. It is not, as courts like to say say, “a source of rights.” Instead, it’s a procedural mechanism that allows one whose constitutional rights have been violated, to file a lawsuit against state actors.  (Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) applies to federal actors, and is a creation of common law.)

If you, as a criminal defense lawyer, won a motion to suppress, then your client's Fourth Amendment rights had been violated. United States v. Leon's good-faith exception works similar to qualified immunity: Both Leon and qualified immunity protect officers who act in good faith. Thus, if you got through Leon in criminal court, there is a good chance you could get past qualified immunity on summary judgment in a civil rights action.

Any criminal lawyer who wins a suppression motion should therefore research whether a civil rights lawsuit is plausible.  They won't always be, though one should still do the leg work.

There are many bases upon which a suppression motion might be granted. Where a suppression motion has been granted under the Fourth Amendment, there is at least a colorable chance of winning a lawsuit. Not every suppression motion in the criminal context will lead to an actionable civil rights claim.

For example, you might have a suspect’s statement suppressed under the Self-Incrimination Clause. Due to the oddity of Chavez v. Martinez, 538 U.S. 760 (2003), you might not be able to sue for a violation of the Self-Incrimination Clause.  See Stroot v. City of Everett, Case No. 07-35425 (9th Cir. Aug. 13, 2009) (discussing circuit split and other Chavez v. Martinez nuances).

Nevertheless, a criminal defense lawyer who wins a suppression motion under federal law should always research whether a civil rights lawsuit should be filed.



7:54 AM

Most successful 4th amendment suppression motions do not lead to a colorable civil rights case. See Townes v. The City of New York in the 2d Cir. Aside from the legal rationale of Townes, I find it hard to imagine a jury giving damages to a plaintiff who was found with drugs or guns in his possession solely because the police improperly discovered them.