Civil Rights Litigation under 42 U.S.C. 1983: Prosecuting the Powerful on Behalf of the Powerless Pt. 3

This is the third and final installment of our 3 week discussion on Civil Rights Litigation under 42 U.S.C. 1983.

Governmental Immunities and Limitations to Liability

1.    Qualified immunity:  Even if your plaintiff’s constitutional rights were violated, a state actor may be entitled to “qualified immunity” if his actions did not violate a “clearly established” constitutional right.

a.   Example:  Husband, wife, son, and two dogs are travelling down the highway in the family station wagon.  They stop for gas, and Husband leaves his wallet on top of the car when he drives off.  Motorist calls police to report a car going very fast with cash flying all over the place.  Police stop car, make everyone exit at gunpoint, cuff everyone, and shoot one of the dogs when it jumps out of the window.  Result:  qualified immunity because officers’ actions were reasonable, for the most part.  But officers left the family cuffed for several minutes after realizing no criminal conduct had occurred.  That was unreasonable, so no qualified immunity on that part of the claim.  Smoak v. Hall, 460 F.3d 768 (6th Cir. 2008).

b.    Qualified immunity is immunity not just from liability, but from the burden of litigation.  When a court denies a motion to dismiss (or for summary judgment) that raises qualified immunity, a defendant may immediately appeal.

i.    The defendant must concede the facts as articulated by the plaintiff on interlocutory appeal.  Meals v. City of Memphis, 493 F.3d 720 (6th Cir. 2007).
ii.    The Ohio Supreme Court recently recognized the right of defendants to an interlocutory appeal on qualified immunity when 1983 claims are brought in state courts.  Summerville v. Forest Park, — N.E.2d —, 2010-Ohio-6280.

2.    Absolute immunity

a.    Judges
b.    Generally, prosecutors
c.    States, under the 11th Amendment.  Naming a state employee in his “official capacity” is the same as naming the state itself.  State employees must be sued in their “individual capacity.”

E.  What Do I Win?

1.  For the client:  compensatory and punitive damages.

2.  For the attorney:  Attorney’s fees, under 42 U.S.C. 1988.  However, you must track your time contemporaneously.  A post-trial fee petition may result in its own mini-litigation, with the successful attorney being deposed to justify the reasonableness of the hours he claims.

This outline was adapted from a lecture given at the Lawyers Club of Cincinnati by Paul M. Laufman of Laufman & Napolitano. If you have any questions regarding Civil Rights litigation please check contact us today.