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.
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.")