Can I Sue the Police?

Transcription

1 Can I Sue the Police? A Rhode Island User s Guide to 1983 Cases American Civil Liberties Union Foundation of Rhode Island 128 Dorrance St., Ste. 220 Providence, RI P: (401) F: (401) August 2013 A Handbook Published by the American Civil Liberties Union Foundation of Rhode Island

2 Table of Contents Introduction 1 About 1983 Lawsuits 6 Obstacles to 1983 Lawsuits 19 What Happens in Court? 24 What Can I Get If I Win? 26 Attorney Fees 30 Conclusion 31

3 Can I Sue the Police? A Rhode Island User s Guide to 1983 Cases Introduction The shortest and best answer to that question is to go talk to a lawyer. No guidebook or brochure can tell you if the legal system can help you get justice when you or a loved one has been mistreated by the police. So this booklet is not set up to give you legal advice for that, you need to talk with a lawyer. But even the best lawyer in the world can t tell you for sure if you will win or not on this or any kind of legal issue. In Rhode Island, there are not many lawyers who take on lawsuits against the police, and most of them will tell you that these cases can be very hard to win for a lot of reasons that this booklet tries to explain. What this booklet seeks to do is to let you know how the law works when someone sues the police. For the most part, it describes the federal law known as Section 1983 that allows people to sue some government bodies and officials who work for the government. 1 It creates what is called a cause of action that allows you to sue if certain official behavior has hurt you in a way that has deprived you of certain civil rights. 1 The official name for the statute is 42 U.S.C. 1983, Civil Action for Deprivation of Rights. The symbol means section. The behavior of government agents has to fit certain criteria in order for you to be successful in a 1983 lawsuit. Depending on the situation, there are also some state statutes that might help someone who has been mistreated by police, but this booklet is just meant to give information about the federal statute. 1

4 When you finish reading this brochure, you should know more than when you started about: How 1983 was created and what it s meant to do; What kind of situations the law might be able to address; Who you might be able to sue, and who can t be sued; The biggest obstacles to winning a case under 1983; A general idea of what happens when you sue under 1983, and What kind of help, or remedies in legal-speak, you might get if you win. What can I do to protect myself and my family from police misconduct? This booklet also tries to help you think about what kind of information will make your case as strong as possible if you do have a legal claim against the police. Any encounter with police can be scary, especially if you are a young person, if you are part of a group that sometimes faces hostile treatment from police, or if you live in a neighborhood where there is a strong police presence. If you have had bad experiences with police in the past or if you face criminal charges, it may be even harder to keep your emotions steady. Many people believe that the history and current systems of racial inequality particularly affect the way that policing happens in communities of color today, but there is no excuse for police misconduct and it should not be dismissed as routine. 2 If you follow some basic safety guidelines any time you deal with police, it can help make things safer for you on the street, and it could make a difference later if you decide to file a lawsuit because the police violated your rights. Stay calm, don t resist or try to run even if the police have no reason to arrest you, and don t react if the officer tries to pick a fight. Even though there is nothing illegal about cussing out a police officer who treats you rudely, you will be in a better position in court and safer on the street if you are the one who keeps your cool. You do not have to answer any questions, but if you do, it is very important not to give any false information to the police. Even if you feel like you have to give a different name, or say something different about where you were or what you did, it will almost always end up causing you serious problems, and hurting you in any criminal case or in a lawsuit against the police. If you end up suing, it will also be important to have the facts clear about what happened. Details like the exact time you were stopped and released, what police said and did, and contact info for people who saw what happened could help you if you end up going to court. This booklet is no substitute for talking to a lawyer, but it could help you if before something happens, you know a little more about how to prepare and what to expect if and when you decide to sue the police. What if I m facing criminal charges? If there are criminal charges against you that come out of the same incident where you were mistreated by police, your first concern will usually be defending those charges. Most defense attorneys recommend that you wait to take any action against police until you finish dealing with the criminal case. One reason for this is to avoid stirring the pot to the point where the police or prosecutor comes after you in a bigger way or decides not to settle the charges against you. By waiting, you also make 3

5 sure the prosecutors can t use your lawsuit statements against you during a criminal trial. It s also important for you to be in a good space mentally if you move forward with your civil suit, and it will probably help if you don t have the stress of criminal charges hanging over your head. Release Dismissal Agreements Sometimes the police try to arrest their way out of a lawsuit by filing criminal charges against a person whom they have mistreated, and then offering to drop those charges if the person signs a form agreeing not to sue them. This form is called a Release Dismissal agreement. Although the U.S. Supreme Court has said that these agreements may be constitutional in some circumstances, some states (not Rhode Island) are forbidding them or putting restrictions on their use. Be very careful before deciding to give up your right to sue when your rights have been violated. Usually, prosecutors will only offer this deal if their case against you is already weak, so you and your defense lawyer might be able to get rid of the charges anyway. For example, the charge of Resisting Arrest means to use force or any weapon in resisting a legal or an illegal arrest by a peace officer, if the person has reasonable ground to believe that he or she is being arrested and that the arrest is being made by a peace officer. 2 The police might charge you with Resisting Arrest even if you didn t use force or a weapon, or if you didn t have any way of knowing the person was a police officer. Disorderly conduct is another very broadly worded crime that people may sometimes be charged with when there are not strong grounds for an arrest. 2 R.I G.L You might want to file a complaint directly with the police department responsible for mistreating you. Local and state police departments are very limited in the punishment they can give officers through internal complaints because of a state law that protects police, known as the Law Enforcement Officers Bill of Rights. Some lawyers advise not to file a complaint with the police department because the more times you have to tell what happened, the greater the chance that you could get even one small detail wrong, which might hurt your chances in court. Other attorneys say that it could help you in a later legal action if the police supervisors acknowledge that the officer(s) did something wrong or were put on notice about what you claim happened. Either way, it can make a difference for future victims if you put something down on the record about what the police did to you, because that helps show that the police department should have known that there was already a problem with this officer. Legal action can never replace working together with people and organizations in your community to change the way that police treat people every day. Many complaints about police conduct are outside what the legal system addresses. And lawsuits usually only happen after something bad has already happened.3 Legal action usually only applies to one person at a time.4 Rev. Dr. Martin Luther King said that power concedes nothing without a struggle. Organizing and working together is the most powerful way to change how police treat our communities, and legal action is only one part of a much bigger struggle. 3 Sometimes legal action works to prevent any more bad things from happening by asking for a court order, called an injunction, that forbids certain activities. See Section D3 for more information. 4 Some legal actions, known as a class action, provide a way for a group of people who are all affected by an issue to pursue a lawsuit together. See Section D3. 5

6 About 1983 Lawsuits A1. What is 1983 and where does it come from? The federal law designated as 42 U.S.C. 1983, Civil Action for Deprivation of Rights, was originally passed by the U.S. Congress in 1871 as part of the Ku Klux Klan Act. Even though the Constitution had already been amended to require equal treatment under the law (the Fourteenth Amendment), Congress was still concerned that in the climate of terror directed toward Black people following the Civil War, state governments in the South were either unable or unwilling to protect constitutional rights, particularly of those people formerly held in slavery. The statute was meant both to protect people against unconstitutional state laws, and to give someone a way to seek help from federal courts if state law wasn t being enforced in a way that protected her or his rights. A2. What violations can I sue the police for under 1983? The most common types of lawsuits under 1983 for police misconduct include: There are limits to how you can use 1983 to fight for your rights. This booklet describes some of those limits. Generally, to win a lawsuit under 1983, you have to show that The person or persons violating your rights acted under color of law, which means they acted using government authority. The government official(s) violated your rights under the Constitution, or certain federal laws. 6 The person who violated your rights knew or should have known that what they were doing was against the law. (Government officials who are justifiably unaware that they are breaking the law are protected from liability under a doctrine called qualified immunity, see Section B2.) Your injury (physical or otherwise) was actually caused by what the defendant did, and not something else or someone else. 4th Amendment - covers stops, searches or seizures (meaning full arrests or detentions). Most 4th Amendment claims involve interactions with the police before a person is charged. Some types of 4th Amendment violations include false arrest, unconstitutional searches, and excessive force. More details and some examples are discussed in the next section. 1st Amendment includes situations where police try to interfere with a person s right to free speech or exercise of religion, or try to retaliate when someone criticizes the government or a public official. One of the most common examples is when police arrest somebody for handing out information or protesting, even if the person isn t doing anything that threatens public safety. 14th Amendment, Due Process might affect someone who wasn t stopped by police, like a bystander who was injured during a police chase. To win this kind of claim, you have to show that what the government officials did is something that shocks the conscience. 7

7 14th Amendment, Equal Protection -- makes it unconstitutional for police to stop you or take other actions against you just because of your race, or certain other traits like sex, religion, or country of origin. Studies have documented what many people already know that police departments throughout Rhode Island stop Black and Latino drivers at much higher rates than White drivers, and many Southeast Asians have experienced similar racial profiling. To show discrimination in a lawsuit, however, you usually need more than solid statistics, such as something the police said or did in your particular situation, in order to show that the discrimination was intentional. A description of a suspect can t be based on race alone, but has to include other factors to give the police a reason to stop someone. 8th Amendment usually won t address conduct by the police in Rhode Island, because it most often deals with the rights of a prisoner after he or she has been convicted, and in Rhode Island that usually involves the state Department of Corrections. There are excellent resource materials with information about 1983 cases for prisoners, such as the Prisoners Self-Help Litigation Manual by John Boston and Daniel Manville. stop you, the courts say that counts as exigent circumstances, because you could just drive away. Or if you are inside a home and the police are looking for drugs, sometimes that is enough for exigent circumstances, because someone could just flush drugs down the toilet. In cases where people have sued the police for violating their Fourth Amendment rights, just like in some criminal defense cases, the two sides will often argue about whether or not police had a good enough reason to stop you or to search you or your home or car. In some situations, the police only need reasonable suspicion instead of probable cause. Neither term has a clear definition. With reasonable suspicion, the police have less to go on than probable cause, but they still have to be able to describe actual facts that made them suspicious, something more than a hunch. The courts say that things like acting nervous, being in a high crime (usually meaning poor) neighborhood, and the like might count when considered with other factors. Being Black or Asian or Latino does not count, or at least it s not supposed to. A3. What does the Fourth Amendment forbid the government from doing? The Fourth Amendment forbids unreasonable searches and seizures of your person, your home, and your belongings without a warrant. The courts have taken that to mean that if the police don t have a warrant, they can only hold you or search you if you give your consent, or if they have probable cause to think you committed a crime and there s some reason they can t go get a warrant and come back that s called exigent circumstances. But there are still some big loopholes for the police. For instance, if you re in a car when the police 8 The Fourth Amendment forbids unreasonable searches and seizures of your person, your home, and your belongings without a warrant. 9

8 The lawyers might also argue about whether you stayed of your own free will after being stopped or because the police made you stay; whether or not you were actually under arrest; and whether or not you agreed to the search. If you are suing about the police using excessive force - beating you up, for instance - the court decides if the force was reasonable under the circumstances, based on what crime the police suspected you of, whether you were resisting or trying to escape, and whether they had reason to think you were going to hurt anyone. In 1983 cases, the court will also decide whether, based on what the police officer knew, it was reasonable for the officer to think that what he or she was doing was justified under the law. (see Section B2 on Qualified Immunity). That means that it s very important for you to: Remember every detail you can of what the police said and did, and everything you said or did. Was there something they said or did or other things happening that made you feel like you couldn t leave? Or that you had to let them search you? Try to write everything down as soon as you can after the encounter. Use the online or printed share-your-story form available at You can also use blank paper, or even type it or speak it onto your phone. Tell someone you trust right away, because telling the story out loud can help you remember all the details and might even help you with your emotional recovery. Go slowly, from the very beginning all the way to the end. When the police first approach you, set your phone to record if you can do it safely. Rhode Island law allows you to tape a conversation as long as one person involved in the conversation agrees to it. Try to be conscious of who is around to see or hear what happened. Even if you can t talk to witnesses when everything happens, you might be able to find out later who saw or heard something important. 10 Think about what stores or businesses are nearby. Many businesses use video cameras, and it could help if you or your lawyer is able to contact the owner right away to get a copy of the recording. If you are physically injured, see a doctor or get to the emergency room and take pictures as soon as possible. Even if you think you can heal on your own, it s important to get a medical record of your injuries. If you seek medical care, it s important to follow all the instructions the doctor gives you. That includes any medicine or other treatment, any restrictions on your activity, and any follow-up appointments. That s the best way to heal from your injuries, and it will also help show the court that you did everything you could to get better, and the harm you suffered isn t because of anything you did or failed to do. If you are ever a witness when someone else s rights are violated, keep a safe distance but try to remember or record everything you see and hear. Courts around the country, including the First Circuit, which covers Rhode Island, have acknowledged that it is perfectly legal to film the police as long as you don t obstruct them in any way. The law doesn t always make it clearcut what police can and can t do. The law doesn t always make it clear-cut about what police can and can t do. Judges spend a lot of time writing complex opinions about what the 4th Amendment does and doesn t allow. Following are a few scenarios to give you some ideas of where the courts might draw the line on police action. Remember that it is not an exact science, and one different detail or even a different judge could change the outcome. And 11

9 you and your lawyer believe, the other side will probably disagree. As you read, think about what information would be important to capture if you were the victim in this scenario. Were your constitutional rights violated? Stopping you: In a Terry stop, named after a famous Supreme Court case from 1968, the police can stop you briefly if they have at least some facts that would make a reasonable person suspect you were involved in a crime. In this scenario, it s not clear if there are any facts to reasonably suspect you of a crime. An officer is allowed to ask you just about anything, so there is no constitutional violation for doing that. But except possibly for identifying yourself, that doesn t mean that you have to answer the questions asked of you, or that the officer can stop you for a long period of time to ask a lot of questions if you re not really free to leave. Asking for ID: Even if you didn t have ID, it was a good move to tell the police your name because it helps keep the situation calm. Also, the Supreme Court has upheld state laws that require a person to identify him or herself to police if they have a reason to suspect the person of a crime. Again, the scenario doesn t seem to show any facts that would give the police reasonable suspicion. And when you re just walking on the street, you have no obligation to carry ID with you. Scenario 1: You are walking down the street on your way home from a friend s house. A member of the Police Gang Unit walks up to you and asks you your name and where you re going, so you tell him. He asks you for ID but you don t have any. He tells you to open your backpack, and you do it. When he starts going through your belongings, you tell him you need to get home because they re waiting for you, and he says, Too bad, we ve had a bunch of shootings in this neighborhood so I need to see if you have a gun. Then he starts asking you questions about the friend whose house you were at, and asks who you roll with. He tells you to push up your sleeve so he can see your tattoos. You tell him you really need to get home and he says, So you don t want me to see what gang you roll with. He tells you to put your hands on the wall while he pats you down and tells you to pull out your pockets, then to take off your shoes and shake them. He doesn t find anything on you, and tells you to get out of here, but don t let him see you on this street again after dark. It gets a little more confusing in Rhode Island, because a state law says that police can hold someone whom they have a reason to suspect of a crime for up to two hours if the person doesn t identify him or herself to the satisfaction of the officer. The Rhode Island law might be unconstitutional, because it also says that police can detain that person if the person refuses to say where he or she is going. If you are ever detained because you refused to show an ID or answer a question about where you were going, you may be in a position to challenge the state law

10 Searching your backpack: Here it would depend on whether you gave your consent for the officer to search, and whether that consent was voluntary. On the one hand, he didn t tell you that you had to open it, but the court should ask if a reasonable person (not just you, but some imaginary average person) felt like he had a choice. The details are even more important. Was there anything about the officer s physical stance, tone of voice, or exact words that would make someone feel like they didn t have a choice? How old are you? Are you a small person, and the officer a big guy? Did he have his hand on his weapon? Making you roll up your sleeves and take off your shoes: If the officer didn t have any reason to search you (for example, saw you stick something in your shoes, or had a description of someone who looks like you with a tattoo on the left arm, who did something illegal) then there is no probable cause to search you. On a Terry stop, the police can frisk the outside of your clothes if they have reason to think you might be armed, and they might get away with having you roll up your sleeves. So again, you and your lawyer have to convince the judge and eventually a jury why you felt like you had no choice when the cop told you to roll up your sleeves and take off your shoes. What would have happened if you said no? What exactly made you think that? You also need to see what facts the police say gave them a reasonable suspicion. pay. You don t like the way he touched you when he starts patting you down, so you squirm to get away from his hands. He slams you against the car and next thing you know, you re on the ground on your stomach, handcuffed. Now, three more police are there, and one of them is kicking you. Were your constitutional rights violated? Getting pulled over: Police are allowed to stop a car as long as they have reasonable suspicion of a traffic violation, even if that s not their main reason for stopping you. Once they stop a car, they can require the driver and even passengers to get out. Pat down: In order to pat you down (which mostly means checking your outer clothing), the police need a reasonable suspicion to believe that you are carrying a weapon. Here, the example doesn t show anything that gives them a reason to pat you down. If they arrest you, then they can search you more completely before they put you in the police car, but in this scenario there is no arrest. Scenario 2: You are driving and get pulled over by a police officer. He tells you that you didn t use a turn signal, and makes you get out of the car and put your hands on the car. He runs your license and finds out that you have an old warrant for court fees you didn t 14 15

11 Scenario 3: The police knock on your door and when you open it and ask what they want, three officers push past you and go inside, yelling, Where the f*** is he?! You ask them what they re talking about and they say they re looking for your son. You tell them that he s not here and he doesn t even live here anymore. They ignore you and start going through the house, pulling out drawers, knocking things over and breaking some dishes and other items. Were your constitutional rights violated? Entering your home: In this case, the police never showed you any warrant, and didn t get your permission to come in. Opening the door does not give them permission to enter unless you say or do something to indicate that they can enter. It s generally not a good idea to allow police into your home without a warrant. Looking for your son: If the police have probable cause to arrest your son, that still doesn t mean they can bust into your house to look for him. They would need a warrant (if he still lived there), and if they didn t have a warrant, they could only bust in looking for someone if it were an emergency like they just saw the person leave a crime scene and run into the house, or they heard screams or shots coming from inside. Searching your home: Even if they did have an arrest warrant for your son and a reason to think he still lived with you, that doesn t give them permission to search through cupboards and drawers in your home. A search warrant is different from an arrest warrant, and has to say what exactly they re looking for. They can only look in places that the thing they re looking for could be, so they 16 certainly can t look for a full-size person inside some dresser drawers or a garbage can, or throw dishes or food all around to find someone. Even though judges and juries will often believe whatever the police say, there can be certain points in the case where the judge has to take your version of what happened as true before he or she can dismiss the case or rule in favor of the police. If you are crystal clear about what happened, that makes it easier for you and your lawyer to explain to the judge exactly how your rights were violated. Opening the door to your home does not give the police permission to enter unless you say or do something to indicate that they can enter. It s generally not a good idea to allow police into your home without a warrant. A4. Who do I sue? 1983 lets you sue city or state government officials like police officers or prison employees, and sometimes the city or state itself. But there are several restrictions you have to work around, especially when it comes to suing the government and not just one of the people who work for it. The 11th Amendment to the Constitution has been interpreted to mean that you usually cannot sue a state for money damages under federal law unless the law specifically says that you can, and the courts have ruled that 1983 does not give you a right to sue the state. You may still be able to sue state officials as individuals for money damages or other relief. And while you can t sue state government for money damages, you might still be able to sue for a court order that forces them to do or not do certain things, called an injunction. (See Section D3) 17

12 You could still sue a local government, like a city or town, if you can show it is responsible for the harm you suffered. Because of the way the law has developed, most attorneys find it very difficult to get the courts to hold the local government responsible. You might be able to show that the city or town is liable for what its officials did by proving that you were harmed because of an official policy, or an unofficial policy known as a custom. A custom must be widespread and something that high-ranking officials knew about and allowed to happen. A local government might also be responsible if you can show a clear connection in how top officials failed to supervise or train the person who harmed you in a way that could have prevented the harm you suffered, or if you show that someone in a high-ranking position of authority was directly involved in what happened to you. Sometimes the misconduct is committed by federal government agents, such as those that work for the FBI, DEA, or ICE (Immigration), either acting on their own or collaborating with local or state police does not provide for lawsuits against federal officials or agencies, but another cause of action, called a Bivens claim, allows lawsuits against federal officials and works very much like 1983 does for state and local officials. If you are able to sue the city or town directly, it can be complicated to figure out what part of the government to sue. For instance, a court recently ruled that you can t sue the Providence Police Department because it s part of the Department of Public Safety, and not a stand-alone department. Because many 1983 lawsuits involve a claim against the individual officials and not the city or town itself, it will be important to be as clear as you can about which officials did what. Even if you don t have names or badge numbers of the people who harmed you, it is important to remember as much as you can about their physical descriptions, voices, plate numbers on their cars, or what names the officers used for each other. 18 Another issue to remember when considering suing individual officials is that they must have been acting under color of law, that is, in a position of government authority. An onduty police officer will almost always count as acting under color of law, even if he or she is doing something illegal. Even if a police officer is off duty, it could be enough that he is using police equipment or identifying himself as a police officer. Even a private individual might act under color of law if he or she is working closely with government officials to carry out some government function when the misconduct occurs. Obstacles to 1983 Lawsuits B1. Do I need to have serious physical injuries to file a lawsuit? There is an old saying about suing for police misconduct that if you don t have any broken bones, forget it you re not going to win. While that s not true, it is generally more difficult to win a case where there are no physical injuries. Without a serious physical injury or something else that a jury or judge can see, it can be much harder to make them understand why the people who did you wrong should be punished. It s harder to put a dollar value on the violation of your constitutional rights. Just like any personal injury case, having medical bills, time lost from work, or damage to your property makes it easier to calculate how much 19

13 money the defendant owes you. It s often difficult, however, to prove that a violation of your constitutional rights alone caused you emotional distress. See Section D1. Using the legal system costs money, just like everything else. If your injury is harder for people to recognize, and not likely to get a big award, it will probably be harder to find a lawyer to take your case. Like a mechanic or a doctor or any other service provider, most lawyers pay their bills from the money generated by providing a service to clients. Even if they don t charge you any fees unless and until you win your case, many attorneys filing 1983 actions will require you to pay for the costs they incur in pursuing the lawsuit. These costs, which can be significant, can include such expenses as the filing fee, expert witness fees, copying costs, and transcripts. You or your attorney will get reimbursed for those costs only if you win either as a percent of the award like in most injury cases, or through another federal law that can make the other side pay legal expenses. See Section E2. 20 If your injuries are emotional or psychological, it s just as important to keep track of the details about how the incident affected you. Did you miss school or work? Did family members or friends notice you behaving differently? Did you seek counseling or therapy from anyone? The most important thing is to be able to describe exactly how you have suffered, and if you can, to show something to back up what you say. Just like with physical injuries, it s a good idea to get checked out by a professional as soon as you have any reason to think that your emotional or mental health might be affected. In some cases, though, like violations of your First Amendment rights to free speech, physical or emotional injury isn t necessary to bringing or winning a case (see Section D2), so you shouldn t automatically assume a case is not worth pursuing just because you were not injured in the typical sense of the word. B2. What is immunity? In other words, why do police sometimes get a free pass even if they did something wrong? In the legal system, immunity is the notion that there are certain agencies or people in certain positions or in certain circumstances who should not be touched by lawsuits. The idea is to allow government to function smoothly without constantly having to stop everything to defend lawsuits. There are different kinds of immunity that apply to different types of public officials: Absolute immunity makes it almost impossible to sue certain officials at all, no matter what they do. Those include judges, prosecutors, and legislators (like senators, representatives, or city council people). It is only supposed to have effect when they are acting in their official functions. So for instance, it doesn t cover a prosecutor who gives advice to police during the investigation stage, before prosecution starts. 21

14 Sovereign immunity is the protection that the 11th Amendment of the Constitution gives to states, which makes it hard to sue state governments (See Section A4). 1. Your constitutional rights were violated Qualified immunity gives a lot of protection, but not total, to government officials, including police officers, with the idea that they need to use their discretion, and shouldn t be so worried about being sued that they become paralyzed and unable to do anything at all. It is still supposed to allow people to hold public officials accountable if the officials do something that they should have known is wrong. 2. It was clearly established at the time that your rights were violated. Clearly established breaks down into two more questions: An ugly description of qualified immunity is that it gives the courts a way to protect police from liability in almost any situation. All federal courts consider qualified immunity as strong protection for police, and the U.S. Court of Appeals for the First Circuit, covering the region that includes Rhode Island, is no exception. For instance, the First Circuit granted qualified immunity after Coventry police boarded and searched a school bus full of Latino soccer players from Central Falls High School, while a mob outside surrounded the bus and screamed racist slurs and police cars blocked the bus from exiting. Even though the Court agreed that the police had no probable cause to search the students, the majority still said that reasonable police officers would believe that the coach didn t feel coerced when he gave in to the police. Judge Rogeriee Thompson (the only Black woman on the First Circuit) disagreed with the other judges, saying that the decision to grant qualified immunity came terribly close to creating an impenetrable defense for government officials. AND a. Was the law clear? That means, have courts come out and said that the kind of thing that happened in your case violates the Constitution? and b. Based on what went down, would reasonable police officers know that the police conduct was against the law? There are many, many debates in court cases, articles and books by lawyers, judges and other experts about qualified immunity, so this list only gives you a sample of some of the points that your lawyer might have to deal with or argue against in order to defeat the qualified immunity defense: What court cases show that this conduct violated the law? Where they cases from the same Circuit (regional) Court of Appeals or from different Circuits, or the Supreme Court? How similar were the facts of what happened to you, and what happened in previous court cases? This can be a big issue in determining whether the police should have known that what they were doing had already been found unconstitutional by the courts. Or, was it a DUH (Definitely Unconstitutional, Heck yeah) situation, something so outrageous that police should have known it violated your rights, with or without previous court cases? However, different judges How does qualified immunity make it so hard to win? Qualified immunity adds an extra layer to what you need in order to win your case. On top of your main task of proving that the police violated your rights, it means that you need to convince the judge that: 22 23

15 might have different ideas of how serious something must be to be obviously unconstitutional. Were there any possible reasons that would have made it ok for police to do what they did, even if the actual reason they did it was bad? In response, some state courts across the country have begun to show a greater understanding of civil rights law, and lawyers may be more likely to consider filing suit in those courts instead. A couple of practical differences may also influence your decision: Bottom line: Even if you can win on the question of whether the police violated your rights, you might still lose any claim for damages based on qualified immunity if the judge doesn t agree that a reasonable police officer should have known that what he or she did was wrong. What happens in court? C1. State or federal court? One question your lawyer will help you figure out is whether it s better to file your case in state or federal court. Remember, 1983 was created after the Civil War because state courts couldn t be trusted to protect constitutional rights, especially for Black people. Through the 1970 s, lawyers and activists around the country counted on federal judges to protect civil rights and almost always brought cases to federal court. They usually didn t see state judges as having much interest in or commitment to civil rights. But many people believe that in recent decades the federal courts have become less supportive of civil rights (with some exceptions, of course). 24 Filing fees are higher in federal court (currently $400) than state court ($160) Timeline for resolving cases generally moves more quickly in federal court than state court. If you do file your case in state court, your opponent (the defendant) has the right to move the case to federal court because 1983 is a federal law. C2. What are the steps once my case is filed? Once you file a complaint, there are several points where the opponent (defendant) can try to win. They might argue that even if what you say is true, it still doesn t mean that your constitutional rights were violated. Or, they might say that whether or not your rights were violated, they should get qualified immunity because what they did was reasonable under the law. C3. Timeline Like any legal action, one of the downsides of a 1983 case is that it can take a very long time to get results. A case could be settled at any time if the other side makes an offer you want to accept. However, if the case does not settle, your case could very well take a few years to resolve. Sometimes civil rights cases take longer than other types of cases where appeals don t usually happen until the trial is done. In civil rights cases, the question of qualified immunity is so 25

16 important that if the court rules against the defendants on qualified immunity at any point before the end of the trial (see Section C2), the defendant may be able to stop things mid-stream to appeal that decision. The judge might let things move forward part-way during that time, but usually it will add to the total time for getting the case resolved. What can I get if I win? One question you should start with is what you want to win. There are different categories of remedies, which in legal language means what you can win. D1. Damages are the money that the defendants have to pay. ü Compensatory damages are to make you whole, or make up for the harm you suffered, if money can even do that. The amount is based on the proof you show to the jury of the harm you suffered because of things like medical expenses, time out of work, or pain and suffering, both physical and emotional (see Section B1). Compensatory damages should include not just losses up until you win your case, but also any expenses or suffering you will have in the future because of what happened. Courts usually don t allow you to collect damages just on the value of your constitutional right that was violated. Generally, you must show that you suffered actual injury or financial loss. However, in certain cases, like First Amendment free speech or voting rights violations, the court may assume that the person was injured because of the right that was violated. 26 ü Nominal damages are when the jury agrees that your rights were violated, but they can t find a dollar value for the injury you suffered. $1 is a typical amount for nominal damages. The reason why an award of nominal damages in a low amount can be useful is that it leaves open the possibility that you might be able also to get an award of punitive damages, or attorneys fees if an award of damages was not the major remedy you sought in your case. ü Punitive damages are to punish the defendant for very wrong conduct, and to make an example so that other government officials will learn not to do what they did to you. Even though any punitive damage award will go to you, the reason behind it is to punish the defendant, not to compensate you for your injuries. To win punitive damages, you have to show that the government official acted with reckless indifference: that s a legal standard that means they totally didn t care how badly you could get hurt. Cities do not pay punitive damages only the individual officials do. Punitive damages can t be too much bigger than the compensation for your injuries. While there s no exact rule, many people figure that punitive damages generally can t be more than 10 times the damages for your injuries. Damages are the money that the defendants have to pay. There are three types: compensatory, nominal, and punitive. 27

17 D2. Injunctions are orders by a court saying that a person or agency has to do or not do something. An injunction can be a good way to help lots of people by getting a major change to the policies or practices of the police or other government officials, but injunctions are harder for one individual to win, because you have to show that Legal remedies (usually money damages, see above) aren t adequate to fix the problem. In 1983 cases, this requirement can often be met by the fact that it s hard to put a dollar value on a constitutional right; and The injury is likely to happen to you again. For many kinds of police misconduct, it is very hard to show that you are in danger of being injured again. It s not enough to show that they keep doing something to different people. For you to have standing, the legal term for being in a position to ask the court for help, in order to obtain an injunction, you have to convince the court that what happened to you is likely to happen to you again, not just to some person in your community. Class Action. One way to make a stronger case for an injunction is to include a whole group of people who are affected by what the police are doing. To get the court to approve, or certify, a class, you have to show that there are so many people affected that it just isn t practical for every single person affected to file a lawsuit; similar legal questions or situations affect all the people in the class; your situation is typical of what happens to other people in the class; and you will represent the other members of the class fairly and protect their interests. D3. Declaratory judgments are a way to get the court to spell out that a certain kind of conduct is illegal. You do not have to show that you have been harmed in as serious a way as you do for an injunction, and the court doesn t stay involved watching over everything the way they might for an injunction. But to get a declaratory judgment, you still need to show that you are likely to be hurt by the challenged policy or practice, and that it is illegal. Sometimes courts are willing to say that in First Amendment cases, when your speech has been unconstitutionally restricted, this is an ongoing violation of your rights if you continue to be unable to exercise your right to speak. In that case, you might be able to get an injunction. However, it might be hard to get an injunction for other claims, like Fourth Amendment illegal searches or excessive force claims, in which a court might decide the wrong is not ongoing. Making your injunction request very specific might help, if you can focus on unconstitutional police conduct that happens repeatedly in a certain neighborhood, or to a particular group of people

18 Attorney Fees One of the biggest barriers to suing police for misconduct is the lack of resources to pay for the expenses and lawyers time. (See Section B1). Because 1983 is designed to protect civil rights guaranteed by the Constitution, you could say that the people who file the lawsuits are really doing the government s enforcement work for them, and saving the expense and trouble of having civil rights squads out there on the street, in the schools, and in the neighborhoods. For that reason, most civil rights laws, including 1983, have provisions to allow people who win their cases to collect attorney fees and court costs. The specific law that provides for payment of attorney fees in these cases is called Proceedings in Vindication of Civil Rights, or 1988 for short, and the courts have interpreted the law to include a few conditions. Most important of these, you have to prevail in order to collect attorney fees. Prevail is more complicated than just saying you won. Particularly in cases where monetary relief is the major goal, you need to win a substantial portion of what you set out to achieve. For instance, on a suit to win damages for $1 million, if you only win $1,000, the court will probably say you didn t prevail. If you are suing to win injunctions (see Section D2), you have probably prevailed if you got some of what you asked for. The court will also scrutinize the costs that a prevailing attorney submits very carefully to confirm if the rate is reasonable and if the hours and expenses appear to be correct. If you didn t pay for them in the first place, attorney fees and court costs don t end up in your pocket as the person who sued,5 but it s still an important issue for you as a person who 5 If you represent yourself, called pro se, you cannot collect attorney fees. 30 wants to protect your civil and human rights. Remember that the other side has a lot of cash usually from your tax dollars to pay to defend the police or other government officials who injured you. And the lawyers for the other side are often very good. One of the biggest barriers to defending civil rights in the courts is that the people who get injured by police often don t have the money to cover basic expenses, much less finance a lawsuit. Some lawyers use a contingency fee system, getting a percentage of any damages you win in the end, like a traditional accident case. The attorney fee provision for 1983 works in your favor because it can still offset the costs and some of the total fees and leave more of the award for you. If you have questions or don t understand how the fee arrangement works, it s important for you to ask your attorney directly so you don t end up with any misunderstanding that could lead to bad feelings or hurt your working relationship with your lawyer. Conclusion After reading this brochure, you should now know a little more about what precautions you can take in case of police misconduct, what types of violations the 1983 statute covers, and what makes it difficult to challenge police misconduct through the law. Remember, the information in this booklet is not legal advice. Now that you know more about how the process works, the next step is to speak with an attorney. Community and civil rights organizations that address police misconduct issues can be a good source of information and sometimes sources of support. Friends and family members might have experience standing up to police misconduct, or might know other people who can offer ideas. The important thing is not to stay silent and to find people who want to work with you to protect your dignity and constitutional rights, and those of your loved ones and your community. 31

19 Acknowledgments This project was coordinated by Shannah Kurland, through the support of the Public Interest Summer Stipend Program at the Roger Williams University School of Law. We are grateful to the following individuals for offering comments, advice and editorial suggestions: Vicki Bejma, Esq. Shakur El-Amin Servio Gomez Hon. Stephen Fortunato Mary Kay Harris Professor Diana Hassel, Esq. Barbara Hurst, Esq. Kara Maguire, Esq. Professor Colleen Murphy, Esq. The American Civil Liberties Union (ACLU) is a national nonprofit, non-partisan organization dedicated to upholding and protecting the rights and freedoms guaranteed by the United States Constitution and the Bill of Rights. Founded in the 1920s by a small group of devoted civil libertarians, today the ACLU is comprised of more than 500,000 members. The ACLU of Rhode Island is the state Affiliate of the ACLU. The American Civil Liberties Union Foundation of Rhode Island is the educational arm of the state affiliate.