Introduction to Civil Rights Law – Do You Have A Viable Claim?
An introduction to civil rights law delineating various types of civil rights legal claims and what to expect when retaining an attorney to help you prosecute a civil rights claim.
IntroductionCivil rights are a hot topic right now, but what exactly are “civil rights” anyway, and how are they enforced?
Generally speaking, civil rights are a class of rights that protect individuals from unlawful government intrusion. Examples of civil rights are things like voting, the right to a fair trial, and the right to due process of law. Some civil rights are created by statute, and others are so sacrosanct that they have been given constitutional protection. While these are a few easy examples of civil rights, many more exist. Conversely, civil liberties are typically freedoms secured by placing restraints on government (for example, the right to be free from unreasonable searches or seizures). Violations of one’s civil rights or liberties can generally lead to a civil rights complaint.
But what if someone interferes with your civil rights or civil liberties? Is there anything that can be done? How much might you have to pay an attorney to help you litigate your case? This article will seek to answer these questions (albeit generally).
Claims GenerallyAssuming one of your civil rights/liberties has been infringed, your ability to recover will depend on the actor(s) who infringed your civil rights. Additionally, your ability to obtain relief will depend on what kind of relief you seek. Typically, injunctive relief is available to prevent ongoing civil rights violations, whereas relief for payment of money damages is available in accordance with statute. Typically, one can sue for injunctive relief to enforce any constitutional right that is being violated, but in order to sue for money damages that you feel entitled to as a result of a constitutional violation, you must first be able to point to and rely on a statute that expressly authorizes recovery of money damages in the circumstances applicable to your case.
Federal vs. State ClaimsIf your civil rights were violated by a municipality (i.e., a city) or by an agent of a municipality (such as a city police officer), you might have a viable “1983” complaint (a 1983 complaint is grounded in 42 U.S.C. § 1983). Conversely, if your civil rights were violated by a State (e.g., Minnesota), you will not have a viable 1983 claim because states are not considered a “person” within the meaning the statute. However, if your claim is against a state official, rather than the State itself, then the 1983 claim remains potentially viable. Relatedly, if your civil rights were violated by the federal government, a federal agency, or an agent of the federal government, then you have no right to recover under section 1983 (but other options are available) because section 1983 does not apply to the federal government.
For individuals who have had their civil rights violated by federal actors, Congress made other remedies available, such as the Federal Torts Claims Act (referred to by attorneys and judges as the “FTCA”). Additionally, if your rights under the Fourth Amendment, specifically, were violated by federal agents, you may have a cause of action that allows you to file a so-called Bivens action. Bivens claims are the most notable exception to the rule that a statute must allow for recovery of money damages for constitutional violations before money damages may be awarded as recompense for constitutional violations.
In many instances, there may also be viable state claims to pursue in parallel to your federal claims (or instead of your federal claims) under any number of state statutes. For example, the Minnesota Human Rights Act provides wide-ranging remedies for discrimination-based claims, which often constitute or have a strong relation to civil rights issues. Alternatively, if your claims sound in tort (regardless of whether they are grounded in civil rights), you may be able to pursue a claim against any city in Minnesota under the proviso of Minn. Stat. § 466.02 (subject to the notice requirement of Minn. Stat. § 466.05). If your claim sounds in tort, but is against the State of Minnesota instead of a city, then Minn. Stat. § 3.736 is the statute that allows you to potentially recover damages (again, note the notice requirement). States outside of Minnesota often (but not always) have similar statutes that allow injured parties to recover damages from the state or cities within the state if certain preconditions are satisfied.
Selecting An AttorneyIn order to determine what legal theory to bring your case under, you should consult with an attorney who has experience litigating civil rights claims. The area of civil rights litigation is an area of law is rife with legal landmines that operate to bar recovery in the event of a legal misstep, so it is important your attorney knows what they are doing.
So, assuming you have a viable claim for relief, how do you pay for an attorney? Typically, civil rights attorneys will bill on a contingency-fee basis, and may ask you to assign any future award of attorney’s fees to the attorney in the event an award of attorney’s fees is eventually forthcoming (for example, 42 U.S.C. § 1988 allows for awards of attorneys’ fees for successful 1983 claims). A contingency fee award means the lawyer only gets paid if you recover, but it also means your recovery will be decreased by the amount of the contingency award (this can have some wonky tax consequences for the plaintiff if the award is not of the tax-free variety). Typically, it is rare to see any attorney ask for more than a 40% contingency fee, and the amount that can be recovered via contingency fees is sometimes limited by statute. For example, the FTCA provides that attorneys cannot charge more than a 20% contingency fee for cases that settle administratively and further provides that attorneys cannot charge more than a 25% contingency fee for cases that result in an award (through either judicial order or settlement) as a result of civil litigation. Similarly, most tort claims in Minnesota require contingency fee agreements because neither Minn. Stat. § 3.736 nor Minn. Stat. § 466.02 expressly allow for recovery of attorney fees by the aggrieved plaintiff.