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A Section 1983 lawsuit may allow someone to sue if a police officer or other government official violates their constitutional rights.

People whose constitutional or other federal rights have been violated by federal and state government officers may bring a Section 1983 lawsuit or what is called a Bivens claim against those officers to recover damages. For state or local government officials, a Section 1993 lawsuit is the right way to sue, and when the constitutional violation(s) involve a federal official a Bivens claim is the way someone can pursue a lawsuit.

Both legal avenues provide for recovery from the government for any damages resulting from the violation of that person’s rights, including physical, mental, and emotional injuries. Plaintiffs may also seek punitive damages and attorney’s fees in certain cases.

The primary purpose (and importance) of these actions is to deter unconstitutional government actions. But there are important differences between Section 1983 claims and Bivens claims:

Section 1983

42 U.S.C. § 1983 gives people the right to sue state government officials and employees who violate their constitutional rights: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…”

States are generally immune from lawsuits, but Section 1983 claims can be brought against the specific government officials or employees who violated your civil rights. Sometimes this means suing a police officer for violating your rights; sometimes it means suing the state’s elected officials to block an unconstitutional law from taking effect, such as was done by James Leach recently in South Dakota– Voice v. Noem, 1:19-CV-01003-CBK (D.S.D. May. 9, 2019).

While state agencies and local governments can also be sued for violating your rights, the rules for suing them are slightly different—rather than being able to sue the local government when one of its employees violates your rights, you can only sue the local government if it was a local government policy that led to your rights being violated, or there was a pattern or practice. Local government “policies” include both official rules, decisions by authoritative “policy makers,” and informal, common practices that are de facto policy within the local government entity.

A Bivens Lawsuit

The 1971 Supreme Court case Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, established the right to sue federal government officials. As opposed to 1983 lawsuits, Bivens actions are is only used as a basis for lawsuits against individual officers or officials, not entire agencies. A Bivens claim is also limited to constitutional violations and usually not used for violations of federal statutes.

Where there are other, separate means of vindicating violations of constitutional rights, a Bivens action may not be allowed.

What constitutes violations of constitutional rights?

Most 1983 and Bivens lawsuits are brought for violations of the Constitution’s Fourth, First or Eighth Amendment rights by an official of the state or federal government. For example, officer shootings of unarmed citizens or cases of police brutality and excessive force, false arrests, illegal searches without proper warrants, custodial inmates beaten or injured by guards, inmates medical needs being willfully ignored by guards, or schools or government entities that censor or punish students or public employees’ right to free speech or religion, could all be subject to these types of claims.

The “qualified immunity” roadblock

When a police officer or other government official is facing a Section 1983 lawsuit or Bivens claim, they will almost always try to get out of it by raising the defense of “qualified immunity.” This concept presents a roadblock for many lawsuits. Qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotation omitted). It allows a police officer or other official to escape liability if the constitutional right the officer is accused of violating was not “clearly established under federal law” at the time the right was allegedly violated. Courts disagree on what “clearly established” actually means, and most defendants in these lawsuits can tie up a lawsuit in appellate courts by appealing a trial court’s denial of qualified immunity.

While there are significant roadblocks in these types of lawsuits, they are a vitally important legal mechanism to hold government accountable. If your constitutional rights have been violated by state or federal officials and you want to discuss it, feel free to contact our office for a case review/consultation.

Yesterday the Rapid City Journal did an excellent piece on the under-representation of Native Americans in the federal jury pool for the division in which I practice. You can read it here.

The Journal article begins with the law review article that I referenced in my last post. While I disagreed with some of the statistics quoted in the article for the actual percentage of Native Americans in the relevant community (a statistic that, like 73.8% of all statistics, can be easily manipulated– that’s a joke), I was impressed and grateful that the Journal took notice of the issue. And, actually, the author recognized that there are differing views on what the actual statistics are, but all can agree there’s an under-representation, just not on how significant the under-representation is.

I also should take a minute here to explain that the judge interviewed in the piece, Chief Judge Viken, is one of the best, if not the best, federal judges I’ve ever practiced in front of, and I’ve seen a lot of them in my career. It takes a lot of courage for a judge to say that there is an obligation of the courts to ensure reasonably accurate cross-sections of the community in its jury pools. And he did that.

Most judges take no proactive role at all in the jury pool process, in my experience. If they do, it is to simply deny the challenges using the “systematic exclusion” prong of the Duren case (i.e. it’s not our fault that the group in question doesn’t go out of their way to register to vote or volunteer for the jury pool). That is an easy way out of the under-representation dilemma, which has been long recognized in South Dakota as far as I can tell, both in state and federal courts.

That Duren prong has been cited ad nauseum to ensure that no one will ever win a cross-section challenge, no matter what your statistics show. Anyone in any jurisdiction in any state would be hard pressed to find one case where a successful cross-section claim was granted. In fact, in another law review article, legal scholar Nina Chernoff’s quotes a study that found that, out of 167 cross-section challenges that were brought between 2000 and 2010, exactly zero were granted. That article was written on January 1, 2019 and published the Washburn Law Journal. You can find an abstract and download the paper in PDF format here.

I highly recommend that article for anyone who is interested in this topic and wants to delve into the cross-section issue. The paper is fairly dense for the non-lawyer reader, but articulates a better argument for my opinion that the courts should shoulder the responsibility to hold government accountable for ensuring fairly representative jury pools, not the litigant. The abstract notes that “courts are undermining the government’s constitutional obligation to produce racially representative jury pools by sidestepping the substantive task of balancing constitutional values.” And I’m glad we don’t have one of those courts in this division. But that doesn’t change the reality that 90% of courts out there are, in my opinion (and my own statistic) are actively avoiding the under-representation issue by refusing to acknowledge government’s responsibility in remedying any significant under-representations.

So… back to the statistic– zero out of 167 cross-section challenges were granted. I think we can safely assume that the lawyers wouldn’t bring a cross-section challenge without some demonstrable statistic showing under-representation of an identifiable group. Does that mean that every jury pool in every one of those jurisdictions s a reasonably fair cross-section of its relevant community? Call me a skeptic, but I highly doubt that.

I am proud of the motion I brought, and I’m humbled that it actually got someone’s attention. And I’m more humbled in reading the Journal article and realize that the court is looking to solve the issue and some progress may finally be made. In times like these, the courts can hold the torch in the darkness and shed the light of the constitution on injustice, when the ordinary citizen can do nothing. And it’s up to lawyers, their clients, and sometimes law students and journalists, to light those torches sometimes.

I am very proud to be part of a recently published law review article on the under-representation of Native Americans in the federal jury panel for the Western Division of South Dakota, found here. The author, Camille Fenton, did an excellent job in presenting the issue.

The right to a fair cross-section of the community in jury pools really gained traction with the Supreme Court case Duren v. Missouri, 439 U.S. 357 (1979). That case involved a criminal trial in which the defendant argued the jury did not represent a fair cross-section of the community, a right guaranteed under the Sixth Amendment. The jury pool excluded women because each juror summons included a section whereby women could exempt themselves from jury service if they were stay-at-home caregivers. Based on the returns, the jury pool from which petit venire panels were pulled under-represented women. The Supreme Court ruled that jury pools must include a fair cross-section of the relevant community.

In 2016, I challenged the jury pool in the Western Division of South Dakota District Court for its underrepresentation of Native Americans. Under Duren, if a defendant can show that a “distinctive group” is significantly underrepresented in a jury pool as a result of “systematic exclusion,” he or she has made a prima facie case that their fair cross section rights have been violated. The “systematic exclusion” part is what tanks most challenges because most courts hold that a challenger must show some kind of intentional exclusion of the distinctive group. I have a big problem with this because I believe that the fair cross section right is one that is the courts’ duty to preserve and protect, not the “distinctive group.” In other words, the court should be responsible to ensure a fair cross section of the community is represented in its jury pool, and the numbers should speak for themselves.

While many attorneys can demonstrate an underrepresentation (as I did with a statistician who found that Native Americans composed approximately 22% of the community, but the jury pool was only around 4%), their challenges fail under the “systematic exclusion” requirement. This is unfortunate because the problem of underrepresentation is often easy to solve by simply expanding the sources jury pools are drawn from. Most jury pools are taken from voter registration lists, such as in federal court in South Dakota. However, by simply expanding the sources to driver licenses, state IDs, tribal enrollment records, etc. the problem can normally be resolved– i.e. the underrepresented groups are better represented.

While there are many courts that proactively deal with the underrepresentation of various groups, such as the Central District of California when it expanded its jury sources to include state DMV records, most stubbornly resist change. This is unfortunate. For the lawyer in the trenches, it often leads to the invariable conversation where a minority client asks you how many Native Americans, African-Americans, Latinos, or other specific group they belong to will be in their jury pool. And, as their attorney, you have to explain that there is really nothing that can be done unless the court changes the way it draws jurors.

I’ve practiced in many different areas– from large cities to border zones, criminal and civil courts, from Guantanamo to the Pine Ridge Indian Reservation. Something that always bothers me is intellectual dishonesty. One such issue came up for me in practicing in “Indian country,” as the federal law books call the reservation. I saw that when tribal officers are sued, the courts say “these are tribal police officers, not federal law enforcement officers,” thereby getting the federal government “off the hook” for civil liability. But when a young Native American kid, like Justin Janis, swats at a tribal officer lunging to arrest him, the officer is suddenly a full-fledged “federal law enforcement officer” for purposes of 18 U.S.C. Section 111, a penal code section criminalizing anyone who “forcibly assaults, resists, opposes, impedes, intimidates, or interferes with” a federal law enforcement officer. And when tribal officers make mistakes in search warrants or criminal procedure, guess what they are now? If you’re as cynical as me, you guessed it– no longer “federal law enforcement officers” beholden to the federal rules of criminal procedure.

The rationale is simple enough– the federal government doesn’t want to pay for civil plaintiffs who sue the tribal officers. But they want to bring the full weight of the federal prosecution arm on anyone who touches a cop on the reservation. Don’t get me wrong, I understand why we want to criminalize assaults on officers. That is a given. But what bothers me is that the federal government wants to have it both ways, and define “federal law enforcement officer” two different ways in order to protect itself against civil liability and excuse any governmental wrongdoing.

I filed an appeal on the issue, and the Eighth Circuit found the jury instruction error (which was only a legal technicality, and not the full picture of my problem with this intellectual dishonesty) was “harmless.” See United States v. Janis, 810 F.3d 595 (8th Cir. 2016). I think the law has it wrong. And I still believe that something should be done to correct this legal wordplay. Either a tribal officer is a federal law enforcement officer or not, but having it both ways is simply semantic gymnastics.

During my seventeen years practicing criminal law, I can recall only one case where someone was able to claw back hundreds of thousands of dollars that were seized as part of a drug crime. This week’s Supreme Court opinion, Timbs v. Indiana, may change that. Normally, as attorneys we routinely tell our clients “if the cops took it, you’re never going to get it back.” From cars to cash, homes to helicopters, the government routinely files what is called “civil forfeiture” actions against criminal defendants’ property. The only way to contest those forfeitures was by filing a claim or an appeal of the government’s action, which would almost always be summarily denied. Then you could file a lawsuit in court, but those were also almost always denied.

The reason is that the government only has to show that the property had some connection to a crime. If you had drugs in your car, you lost the car. If you had drugs or guns in your house, you sometimes lost the house. I remember reading about a woman who lost her house to civil forfeiture even though she repeatedly tried to get people to stop selling drugs around it.

The Timbs opinion was a 9-0 decision (rare nowadays, but we’ll see with the new composition of the court). And I think that’s because it really doesn’t do much new, although I do think it will have some effect. Most states already have laws regulating civil forfeiture and prohibiting “excessive” forfeitures. This opinion really just says that the 14th Amendment applies the 8th Amendment right to the states. So, in most states there’s no substantive change in the law. However, I am hopeful that the Timbs case will at least influence government and judicial referees to look at forfeiture orders with more scrutiny.

If you have a civil forfeiture case, you should either consider filing a motion contesting the forfeiture or speak to an attorney about your options. It is no longer a hopeless proposition to stop the government from taking everything.