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.")



5:08 PM

what about all the nuisance cases that municipalities are forced to defend? who should shoulder those litigation costs? under the current view, it is the taxpayer because prevailing defendants almost never obtain prevailing party status in nuisance cases. not sauce for the goose?


5:28 PM

1. Pro se suits should be inherently suspect, and require a Certificate of Probable Cause be issued before service of process. That would probably be unconstitutional for many reasons.

Were I in charge, pro se litigants would simply not be allowed into court rooms without adult supervision. Or proof that they are adults - which is about 10% of pro ses - would be required.

2. I don't know many lawyers filing nuisance suits. Federal court litigation takes a lot of time, and there aren't a lot of deep-pocketed plaintiffs to pay these legal bills.

In principle, though, defendants should be able to recoup legal fees. They can already - but only in frivolous or bad-faith cases.

Think of a fair legal standard, though, you can add me to the petition.


5:22 PM

In Gideon v. Wainwright, Gideon was a pro se up to the time the U.S. Supreme Court granted his handwritten petition for cert.


4:44 PM

To the first Anonymous, Pro Se is the only way you can sue the government. They have unlimited deep pockets and refuse to negotiate. I can tell you it is difficult being pro se, but how else can you settle a $10k dispute without spending that much in legal fees. Muni's don't have to choose between being right and settling.

  Constable Roy L. Denton, Ret.

4:18 PM

Hello, my name is Roy L. Denton. Feel free to verify much of what I stand for and believe at www.searchofserenity.com
But I agree in part that some sort of "restriction" be placed upon a pro se litigant. However, such restriction already exists. A pro se plaintiff may be ordered to pay attorney fees of the defendant, as the court says, "defendants to recover attorney's fees only if the plaintiff's case is "frivolous, unreasonable, or groundless, or ... the plaintiff continued to litigate after it clearly became so." Christiansburg Garment, 434 U.S. at 422, 98 S.Ct. at 701" So, there is NO NEED to attempt exclusion of a common layman due to his social status of being a "lawyer", or some other "subject" classification as subjects to the king. I for one do not need an attorney and have routinely defeated them on almost every level. All I did was read what they read, do what they do and watched the movie "Good Will Hunting". I submit to you a case filed by me, pro se, against a police officer, but did so not for money, but for a constitutional right violation. Sure, I knew going in I'd have to overcome that horrid "excuse" courts hand out called "qualified immunity", pffffft. I say if anyone needs qualified immunity, or in fact absolute immunity it should not be only to a cop or judge, but to those soldiers that WE send to fight for us chickens here at home. Never convict a soldier in wartime for acts done in wartime absent a "exigent" circumstance to do so otherwise. Here is the link to the USCA 6th Cir as inspiration to pro se litigants. http://www.ca6.uscourts.gov/opinions.pdf/09a0736n-06.pdf