Time to Amend 42 U.S.C. Section 1988 (As Qualified Immunity Has Gutted It)

Most people whose rights are violated aren't like us.  While we might not be CEO of Goldman Sachs, most regular readers aren't the type of people randomly selected for a civil rights violation.  We are People, or at least we know People.

Recognizing that most civil rights plaintiffs are often friendless and penniless, Congress enacted Title 42 U.S.C. § 1988.  Under Section 1988 (emphasis mine), a trial "court, in its discretion, may allow the prevailing party ... a reasonable attorney's fees []."  "The purpose of § 1988 is to ensure 'effective access to the judicial process' for persons with civil rights grievances." Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)(quoting H.R.Rep. No. 94-1558, p. 1 (1976)).

Prevailing party is italicized by me - and for good reason.  In Section 1983 litigation, a person can both prevail and not prevail.  It ain't quantum physics: It's qualified immunity.

In Safford Unified School Dist. #1 v. Redding, for example, the Supreme Court held that strip searching a small girl is unconstitutional under the Fourth Amendment.  The Supreme Court also held that the defendants were entitled to qualified immunity, since the law of stripping children naked - despite volumes of published child porn cases and seasons of "To Catch a Predator" - was not clearly established.

Thus, the plaintiff won but also lost.  Winning while losing means one very important thing to those of us with overhead: We can't pay our bills.  Why?

In Hewitt v. Helms, 482 U.S. 755 (1987) the United States Supreme Court held: "We conclude that a favorable judicial statement of law in the course of litigation that results in judgment against the plaintiff does not suffice to render him a 'prevailing party.'"

We thus have a Gordian knot of doctrines and disincentives.  Let's look at the tangles:

  • A state actor is entitled to qualified immunity.
  • Qualified immunity applies when the law has not been clearly established.
  • Courts are more willing than ever to find in favor of defendants based on qualified immunity.
  • A lawyer who creates clearly-established law will not get paid.
In Hewitt, the Supreme Court indicated that it won't budge.  Denying a living to lawyer who creates new law in the United States Supreme Court is required not just by law - but by common sense. (!)  Id. at 763 ("Any other result strains both the statutory language and common sense.")

It is therefore incumbent upon Congress to amend 42 U.S.C. Section 1988.  In a case where new law is recognize, or the contours of the law are defined, the plaintiff should be entitled to attorneys' fees.  Otherwise, police officers will continue violating the Constitution - since few lawyers are able to litigate for free.

If you think this is about greed, think again.  I'd gladly litigate civil rights cases for free.  That would also require me to go bankrupt.  And since my student loans are from the federal government: Wouldn't you like to be paid back?

A compromise solution would be to deviate from the lodestar method in cases where qualified immunity is awarded.  Under the lodestar method, reasonable fees "under § 1988 are to be calculated according to the prevailing market rates in the relevant community []."  Blum v. Stenson, 465 U.S. 886, 895 (1984).  Cutting the lodestar in half would embitter the bill, but still double the medicine.

Under Section 1988 as written, few lawyers can afford to vindicate the Constitution.  Is that what Congress intended when it enacted Section 1988?  See S.Rep. No. 94-1011. (Congress “intended that the amount of fees awarded ... be governed by the same standards which prevail in other types of equally complex Federal litigation ... and not be reduced because the rights involved may be non-pecuniary in nature.”); H.R.Rep. No. 94-1558, p. 1 ("The purpose of § 1988 is to ensure ‘effective access to the judicial process' for persons with civil rights grievances.")

Ham Sandwich Can Sue Prosecutor

It's been long said that a prosecutor could get a grand jury to indict a ham sandwich.  A grand jury is a way for a prosecutor to violate the Fourth Amendment.  See Tim Lynch, "A Grand Fa├žade: How the Grand Jury Was Captured by Government" (here).

One grand juror started asking a prosecutor too many questions.  The prosecutor, assistant U.S. Attorney Daniel Zachem, dismissed the grand juror.  The grand juror sued, and the D.C. Court of Appeals held that the prosecutor lacked absolute prosecutorial immunity.

Today the United States Supreme Court decline to review the opinion.  Mike Scarcella has more details here.

Section 1983 and False Child Molestation Charges

There is so much going on in White v. McKinley (CA8) (here) that I'm struggling writing a post.  Short story: A wife falsely accused her husband of child molestation.  The cop she was dating withheld evidence exonerating the husband.  At least two prosecutors knew that the cop was having sex with the wife, but didn't disclose this to the defense.

And I'm only on page 5!  Read it.

The Nuances of Prison Litigation Reform Act Exhaustion

Ordinarily a litigant is not required to exhaust administrative remedies before filing a civil rights lawsuit. Under the Prison Litigation Reform Act, prisoners must first complain to the prison before filing a lawsuit.  There is endless litigation over what "exhaustion" means.  It's exhausting.

In Harvey v. Jordon (CA9) (here), a prisoner failed to report a grievance to prison officials within 15 days of his injury - here, guards were overly loose with pepper spray grenade.  The prisoner felt ill, but didn't attribute his illness to prison officials' misconduct.  Thus, he didn't file a grievance within the deadline; but he did file after discovering that his respiratory illness was a reaction to pepper spray.

No excuse:

According to Harvey’s own statements, he knew on the date of his cell extraction that prison officials had no justification for any of the cell searches conducted that day; that the pepper spray “worked its way into [the] vent system,” causing obnoxious and powerful fumes to circulate throughout the prison; that he did not refuse to comply with the search or obstruct the view through his cell window; and that the pepper spray grenade “nearly incapacitated” him when it was thrown into his cell. Because Harvey could have filed an excessive force grievance based on those allegations alone, he was not prevented from filing a timely grievance because of a lack of information.
Read the rest here.

Do Parents Have a Constitutional Right to Murder Their Child? (P.J. v. Cunningham)

A very interesting legal issue in P.J. v. Cunningham (CA10) (here), a child was diagnosed with a tumor.  The parents didn't want to give the child medical treatment.  The Tenth Circuit Court of Appeals held that denying a child medical care is parent neglect:

when a child’s life is under immediate threat, a state’s interest in protecting the child is at its zenith, and a state has broad authority to intervene in parental decision making that produces the threat to the child’s life.
Thirty-five pages of niceties and balancing tests when the court should have given the parents a ruthless smack down.  Spare the rod, spoil the child - and it's obvious here that the parents are the ones behaving like children.

You cannot beat your children.  If you put your kid on the roof in the hot sun to communicate with Apollo, no one would claim that you had parental autonomy to give your kid heat stroke.  You cannot kill your kid.  If you put a knife up to your child's neck, a cop would blow out what little brains you have - and we'd all be happy to see you leave planet Earth for whatever afterlife you believe in.

Somehow when a child has a fatal cancer, everyone starts to act as if these are tough issues.  They are not.  If you believe that there is a God that's going to heal your child, great.  But the child's life is not your own.  You are a trustee - or in Biblical terms, a steward.  This means you save your child's life.

The child has a right to live.  And if you think your deity is so powerful that it will cure cancer, then your deity will push aside the modern medicine to touch the child.  In other words, a little chemotherapy isn't going to stop any god with enough power to cure cancer.

What a revolting case, and what a malignant set of parents.

Federal Jurisdiction and Title VII Fee Awards

A Naval employee won his discrimination claim before the EEOC, but the EEOC didn't award the plaintiff his attorneys' fee request.  Does a federal court have jurisdiction to hear his claim for attorneys' fees where there is no longer a substantive cause of action under Title VII?  Yes, said the Ninth Circuit:

We conclude that, under New York Gaslight Club, Inc. v.Carey, 447 U.S. 54 (1980), federal courts have subject matter jurisdiction over claims brought solely to recover attorney’s fees incurred in Title VII administrative proceedings. Accordingly, we reverse.
Porter v. Winter (CA9) (here).

Appealability of Qualified Immunity Denial

In most civil cases, a defendant may not immediately appeal the denial of summary judgment, as it's not an appealable order.  Instead, a defendant who has been denied summary judgment must proceed to trial.  If the trial court misinterpreted the law, an appeals court will reverse after trial.  Until then, the case must go on.

The United States Supreme Court concluded that government officials were a privileged category of civil defendant.  Thus, a government defendant who has been denied summary judgment may immediately appeal the denial of qualified immunity.

Fortunately, the privileged class must still go to trial when the court denies qualified immunity based on a question of fact rather than of law:

But just because an order denying a motion to dismisson qualified immunity grounds is generally considered a final decision, it does not mean that the right to appeal that order is unlimited. If the denial of qualified immunity turns on factual rather than legal questions, the denial is not properly subject to appellate jurisdiction under the collateral order doctrine because the decision is not “final.” Johnson v. Jones, 515 U.S. 304, 313-18(1995); Wernsing, 423 F.3d at 741.
Leven v. George (CA7) (here).  The distinction between law and fact is sometimes tricky, but not so here:
The magistrate judge denied defendants’ claim of qualified immunity on the grounds that genuine issues of material fact existed with regard to whether Officers George and Westerfield had probable cause to arrest Levan, and whether Officer George had probable cause to use force. Although at oral argument defendants’ counsel attempted to distinguish the factual determinations from the legal issue of qualified immunity, we find it nearly impossible to sever the two questions. Instead, we think it readily apparent that the question of qualified immunity turns on genuine issues of material fact. As Justice Breyer wrote in Johnson, when “a defendant simply wants to appeal a district court’s determination that the evidence is sufficient to permit a particular finding of fact . . . it will often prove difficult to find any such separate question . . . .” Id. at 314. That admonition rings true here.  
While the panel's view of its role in resolving disputes is correct, judicially-activist courts would have decided the issue differently. (More here.)