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Civil Rights Litigation calls for a blending of
many legal disciplines. The skillful practitioner must combine knowledge of
constitutional law, civil litigation and criminal defense. We center our practice in
the area of police misconduct. A limited number of cases are undertaken each year in
order to allow us to provide proper concentration on these cases. If you feel that
your rights have been violated by law enforcement officers, we would appreciate the
opportunity to talk with you.
Areas of Concentration
Police misconduct represents the primary area of our representation. Cases have
concentrated on illegal arrests, unreasonable force in the carrying out of an arrest,
unlawful detention, invasion of privacy, unreasonable searches and seizures. We are
in the filing stages of a major case involving the bringing along of a television station
camera crew on the execution of a search warrant. Damages are being sought against
the television station and all law enforcement involved in this matter.
We are willing to evaluate other cases, including prisoner rights, high speed chases,
discrimination cases and other civil rights matters.
Frequently
Asked Questions
WHAT EXACTLY IS A "CIVIL RIGHT"?
Broadly speaking, a civil right is a right created by a governmental body. For example,
the right to free speech is guaranteed by the First Amendment of the United States
Constitution. It is also protected as a right in many state’s Constitutions. Because
this right is created by the Federal government, or your State’s government, it is a
"civil right".
The rights that are most commonly referred to as "civil rights"
involve the protections against discrimination on the basis of race, religion, gender, or
national origin.
The most prominent example of a statute protecting civil rights is the Federal Civil
Rights Act of 1964 which, among other things, prohibits discrimination on the basis of
race in places of public accommodation.
HOW ARE THESE RIGHTS PROTECTED?
There are two primary mechanisms for protecting citizens’ civil rights:
(1) Statutes that make certain types of discrimination unlawful, and authorize government
agencies to act to prohibit violations of the rights granted in the statute, and
(2) Statutes that allow individuals who have been harmed as a result of prohibited
discrimination to sue for money damages or injunctive relief if their civil rights have
been violated.
CAN I SUE WHENEVER
SOMEONE INTERFERES WITH ONE OF MY CIVIL RIGHTS?
You generally won’t be successful in a lawsuit against a private individual for
depriving you of your civil rights unless there is a federal or state statute authorizing
a suit against a private individual. For example, if you are trying to make a speech in
someone’s house and the owner kicks you out, you cannot sue him for depriving you of
your First Amendment right-to-free speech. Of course if the owner beats you up while
getting you to stop, you may be able to sue the person for the intentional tort of
battery.
As there are Federal and state statutes covering fields such as housing, employment, and
public accommodations, you can sue to prevent private individuals from discriminating
against you in those areas.
You can also sue a government employee who deprives you of your civil rights while acting
"under color of law".
WHEN IS A GOVERNMENTAL EMPLOYEE ACTING "UNDER COLOR OF LAW"?
Officials act under "color of law" when they are either actually carrying out
their official duties or they act in a manner which makes it seem as if they are. For
instance, a police officer arresting someone while on duty is clearly acting "under
color of law." In addition, an off-duty police officer showing his or her badge is
most likely acting under color of law. Some actions taken by private institutions that are
doing work for the government (such as a university performing a government contract) may
also be considered to be "under color of law."
WHO CAN SUE?
Generally, you must have suffered an injury in order to sue for a violation of your civil
rights under Federal or state law. It need not be a physical injury, however. Injuries
such as a loss of property or racial stigmatization should allow you to sue for relief. In
some cases a group in which the victim of discrimination is a member may sue on his or her
behalf.
WHO CAN BE SUED?
Where suit is authorized, it is generally possible to sue private individuals (and
corporations, businesses and other organizations). It also may be possible to sue public
officials (in their "personal capacity") as well as their individual capacities.
Governmental bodies can be sued for certain classes of damages.
CAN I SUE A GOVERNMENT OFFICIAL FOR A SUBORDINATE’S
ACTS?
Generally, you can sue an official only for his or her actions, not for the acts of
someone under his or her control.
If you are suing a state or municipality, you will have to be able to show that the
deprivation of your civil rights was linked to "official policy or custom".
WHAT IS "OFFICIAL POLICY OR CUSTOM"?
"Official policy or custom" means that the state/municipality that violated your
civil rights was at least aware of a widespread practice that violated your rights, or
those of people similarly situated to you. This standard clearly includes acts that are
officially legislated, such as those in a state law or municipal ordinance or rule.
Official policy or custom also extends to activities that, while not necessarily written
down anywhere, are known to exist by the authorities in charge of the government agency
that is violating civil rights.
WHAT IS "IMMUNITY"? HOW DOES IT
AFFECT MY ABILITY TO SUE?
Immunity allows certain individuals to be protected from suit. There are two types of
immunity: absolute and qualified.
Absolute immunity means that a person cannot be sued for any act done in his or her
official capacity, regardless of the person’s intentions. Judges, legislators, and
prosecutors carrying out their functions as attorneys generally have absolute immunity.
Qualified immunity offers less protection. In order to successfully sue persons with
qualified immunity you will have to prove their conduct violates clearly established
rights which a reasonable person would have known about. Police officers generally have
qualified immunity.
WHAT TYPES OF REMEDIES ARE AVAILABLE IF I SUE?
There are two types of relief available for the violation of your civil rights: money
damages and injunctive relief.
Money damages are available for the loss of property rights and for violations of civil
rights done "under color of law".
Injunctive relief means that the government will intervene to stop the individuals who
have violated your civil rights from continuing to do so. Injunctive relief is the only
remedy available for many civil rights violations, including those under the Federal
anti-discrimination statutes.
WHAT DISTINGUISHES
UNLAWFUL DISCRIMINATION FROM LAWFUL DISCRIMINATION?
Many decisions that are made in the course of everyday life can be said to be
discriminatory. For example, you may prefer vanilla to strawberry ice cream. That type of
discrimination is a matter of personal choice. The strawberry growers have no civil rights
claim against you.
A life insurance company charges lower rates for 20-year olds than 60-year olds, and this
is permissible. The Government treats bank robbers differently from bankers, and bankers
differently from bakers. That does not mean that there is unlawful discrimination.
Decisions become unlawfully discriminatory when race, creed, national origin or ethnicity
(and, in some cases, gender) are factors which cause one person to be treated differently
than another. Some states have laws that also protect against discrimination on the basis
of marital status or sexual preference.
DOES DISCRIMINATION HAVE TO BE INTENTIONAL TO BE UNLAWFUL?
Yes. Even if a decision has an unequal impact on different races (i.e., the result is that
people of one race fare worse than people in another), it is not necessarily unlawful
discrimination. In order to be successful in a civil rights lawsuit, you must prove that
the decision maker intentionally discriminated.
CAN I SUE A LAW ENFORCEMENT OFFICIAL FOR VIOLATING MY CIVIL
RIGHTS?
Yes, but don’t expect to win unless the violation was flagrant and there are
videotapes, such as there were in the Rodney King beating case, or lots of witnesses who
are very believable. In fact few lawyers will accept such cases -- as chances of success
are typically very poor --except where there were notorious abuses or the matter is one of
widespread public interest.
WHY ARE CASES AGAINST LAW ENFORCEMENT
OFFICIALS SO DIFFICULT?
First, almost every convicted criminal claims his or her rights were violated. The courts
and public have little sympathy for criminals, and generally their credibility is weak
– particularly if they are repeat offenders – when contrasted with law
enforcement officials. Where there are videotapes that document the violations – as
there were in the Rodney King case -- that would be a different story.
Second, law enforcement officials have qualified immunity (as discussed above). Thus the
law enforcement official’s conduct must be willful or, at a minimum, reckless in
order for someone to be able to sue. Being merely careless (or mildly unreasonable)
conduct are not sufficient to allow you to sue.
Third, the official’s conduct must deprive you of a civil right. For example, an
officer neglecting to read you your Miranda rights (your right to remain silent and right
to counsel) cannot be sued unless you turn over evidence that is used against you by the
law enforcement agency.
Fourth, in order to sue for use of excessive force, you must suffer a significant injury.
Even if you suffer such an injury, if the law enforcement officer’s use of force was
justifiable – and you can bet that he or she will claim it was – a lawsuit will
not be successful.
IS IT POSSIBLE TO RECOVER ATTORNEY’S FEES?
Yes. A prevailing party -- even one who is partially successful -- generally may ask the
court to award reasonable attorney’s fees and expenses of litigation in a civil
rights lawsuit. The laws’ purpose in allowing awards of attorneys fees is to
encourage the enforcement of civil rights laws. There is no provision for paying
attorney’s fees for unsuccessful civil rights litigants.
IS IT POSSIBLE TO RECEIVE PUNITIVE DAMAGES?
Yes, but only where aggravating circumstances exist.
SPECIAL TYPES OF CIVIL RIGHTS PROTECTIONS
ARE THERE PROTECTIONS FOR THE PHYSICALLY AND MENTALLY HANDICAPPED?
Federal law (Americans with Disabilities Act, or ADA) makes it unlawful to discriminate
against an otherwise qualified disabled person in a workplace. Workplace protection covers
job application procedures, hiring, firing, advancement, compensation, training,
recruitment, advertising, tenure, layoffs, leaves, fringe benefits, and so forth. There
are some exceptions, such as when a person’s disability prevents him or her from
meeting reasonable qualifications for the job. This law applies to public sector
employers, and private sector employers with more than 15 employees. Some states have laws
that are more stringent, and, for example, cover employers with fewer employees.
In addition to employment nondiscrimination protection, other activities covered under the
ADA include public accommodations, transportation, state and local government services,
and telecommunications.
ARE THE CIVIL RIGHTS LAWS ONLY FOR
MINORITIES? DO WHITES HAVE
PROTECTION?
The civil rights laws are intended to be available to protect everyone, including black,
Asian, Hispanic and Caucasian. Courts have allowed white people to sue for race
discrimination.
ARE AFFIRMATIVE ACTION PLANS
LEGAL?
An Affirmative Action Plan ("AAP") sets standards for the recruiting, hiring and
promotion of women and minorities (to eliminate the present effects of past employment
discrimination).
The Federal Government, and some states and localities have such plans. Other states and
localities (such as California and Houston, Texas) have passed referenda making it illegal
for the state and local government to make classifications on the basis of race.
The appropriateness of Federal and State affirmative action efforts as attempts to remedy
past discrimination is a current matter of significant legal debate and political
controversy. As what promised to be a landmark case that the United States Supreme Court
had agreed to decide, involving a New Jersey teacher who was white and who was dismissed
in favor of a minority teacher, has just been settled, so a definitive answer may be years
away.
In the private sector, an employer’s voluntary AAP to remedy racial or gender
imbalances in what had been segregated job categories is probably lawful and would not be
deemed to be discriminatory, although specific advice from an experienced attorney based
on the unique factual pattern would be advisable.
WHAT ABOUT AGE DISCRIMINATION?
In employment, age discrimination is frequently illegal.
The Federal Age Discrimination in Employment Act ("ADEA") prohibits arbitrary
discrimination against persons age 40 and over on the basis of their age. It is not,
however, unlawful to discriminate on the basis of factors that can arise with age, such as
health problems.
Although Federal law does not prohibit discrimination against those younger than 40, and
only applies to public sector employers, and private sector employers with more than 20
employees. Many states’ laws protect persons under 40 years of age, or who work for
smaller employers.
ARE THERE HOUSING PROTECTIONS?
Yes. The Federal Fair Housing Act prevents discrimination on the basis of race in the sale
or renting of housing. This law applies to anyone who is selling or renting real estate or
housing. It is also unlawful to "steer" residents of a certain race to a
neighborhood in which people of the same race live.
Some state and local laws have added impermissible grounds for discrimination. For
example, some prohibit landlords from refusing to rent to prospective tenants with
children or an animal(s) or below a set age. Others have legislated extra protection for
those who are blind, disabled or students.
CAN PRIVATE CLUBS AND RELIGIOUS ORGANIZATIONS DISCRIMINATE?
That depends. When dealing with private individuals, the Federal civil rights statutes
only reach as far as public accommodations. Thus, while it is unlawful to discriminate on
the basis of race or national origin in hotels, restaurants, theaters, public
transportation and public parks, the Federal civil rights laws do not make it unlawful for
bona fide private clubs and religious organizations to discriminate on whatever basis they
choose.
Many states have enacted laws that go well beyond the protections afforded by the Federal
laws, both in terms of their scope of prohibited conduct and their application to what
might be regarded by some as private clubs or organizations. For example, in March 1998, a
divided New Jersey Appeals Court decided that New Jersey's Civil Rights Law prohibited the
Boy Scouts from discriminating against a scoutmaster because of gender preferences, while
in a similar case across the country, the California Supreme Court held that California
Civil Rights Law did not prohibit the Boy Scouts from denying membership to persons who
are gay or do not believe in God.
Some cities, including Chicago, New York and San Francisco, also have
local Civil Rights Laws that are far broader than the Federal law. For example, New York
City defines private clubs that derive certain levels of income from business as places of
public accommodation for purposes of its Civil Rights Laws. San Francisco requires
employers who do business with the city to offer their employees health insurance for
non-marital "partners".
IS EDUCATION A CIVIL
RIGHT?
Technically speaking, no. However, since the famous 1954 case of Brown v. The Board of
Education, it has been illegal for public schools to discriminate on the basis of race. It
is also illegal for a public school district to be segregated as a result of intentional
practices, such as drawing the schools’ boundaries around exclusively single race
areas (this is known as de jure segregation).
If, however, a school is exclusively one race as a result of freely made housing decisions
(de facto segregation), there is no violation of the Federal civil rights laws.
In higher education, it is unlawful for colleges and graduate schools to discriminate
against minorities.
DO PRISONERS HAVE CIVIL RIGHTS? CAN
THEY SUCCESSFULLY SUE FOR VIOLATIONS?
Virtually every aspect of a prisoner’s life is controlled by the prison authorities,
and many civil rights law suits are filed by prisoners. While prisoners do have certain
civil rights, Federal law and court decisions as well as the laws and court decisions of
each state, differ on the scope and limit of prisoners’ rights. However,
generally-speaking, prisoners, and sometimes even persons on parole and former prisoners,
do not enjoy the same civil rights as persons who have not been convicted of a crime.
The most typical form of prisoner lawsuit is the petition for habeas corpus in Federal
court after s/he has exhausted state remedies. The petition says that you are challenging
a state’s right to keep you a prisoner. Only a tiny number of these suits are
successful.
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