Fact Pattern: A law enforcement officer who sees a twelve year-old boy riding a bicycle without a helmet run a red light decides to issue the boy a citation. The boy ignores the officer's instructions to stop and instead turns his bike into a nearby park and races home. The officer arrives at the house shortly after the boy and chases him up the stairs and inside the house where he takes him into custody.

Question: Violation?

People who learn that I practice civil rights law, usually ask me two questions - "What does it mean to practice civil rights law?" and "Is there any money in that?" I typically answer both questions with the same answer - "I'm not really sure." While that answer may seem glib, it is appropriate for the simple reason that it is honest. Like so many things in the law, "a civil rights practice" is not given to an easy definition. And, like all cases, the outcome of a civil rights case is hardly guaranteed, rarely immediate, and never exactly as foreseen. However, one thing I do know is that if you are to practice civil rights law, you must be able to spot the issues in a fact pattern like the one above and then ask the follow-up questions which will determine the true scope of the case. If you simply pass on such fact patterns, you not only deny yourself the possibility of a healthy fee, but also miss the opportunity to perform a valuable public service.

Unlike a typical personal injury case where damages diminish as one moves further away from the injury causing tort, damages in a civil rights case typically start with one violation and then multiply the further one gets from the originating event. Thus, in the above-described fact pattern (where I would suggest the officer's entry into the house is unconstitutional) each subsequent interaction, such as an arrest or incarceration, will also be tainted and create additional causes of action. Additionally, whereas it is difficult to hold a typical tortfeasor liable for damages to third party witnesses to an injury causing event, such is not the case in civil rights law. Thus, follow-up questions on the above fact pattern might reveal that the officer invaded the privacy rights of the home's occupants or, by detaining or touching those occupants, violated their Fourth Amendment right to be free from unreasonable seizures. An unnecessary detention might allow family members to sue for deprivation of their liberty interests in the continued companionship and society of a child or parent as guaranteed by the Fourteenth Amendment. Ovando v. City of Los Angeles, 92 F.Supp.2d 1011 (C.D.Cal. 2000).

Additionally, follow-up questions might reveal a larger pattern of violations giving rise to a class action based on improper policies and procedures. Indeed, the careful questioning of six protestors seeking representation because of being arrested for allegedly disrupting a Board of Forestry Meeting led to the filing and settling of the largest civil rights class action lawsuit in Sacramento County history. It also led to changes in strip search procedures in local jails throughout California.

Understanding the potential dimensions of a civil rights claim is equally important for the defense bar. Attorneys representing agencies with exposure to civil rights claims should explain this danger to their clients and encourage their agents to step back from a constitutional violation and to proceed only when their actions can be supported by legal authority. As the Supreme Court recently reminded us in Georgia v. Randolph, __ S.Ct. ___, 2006 WL 707380 (U.S.Ga.) where instead of waiting for a warrant, officers searched a couple's home after one owner gave and the other owner denied consent, evidence collected after officers enter a home in violation of the Fourth Amendment had to be suppressed. The Court's ruling warns that instead of helping an agency's cause, a continued constitutional incursion creates an increased risk of liability for civil rights violations.

In addition to the personal injury damages associated with civil rights cases, practitioners must consider the risks and rewards provided by related attorney's fee provisions. In cases brought under 42 U.S.C. § 1983 (the Federal statute that provides for causes of action based on violations of the U.S. Constitution), a prevailing plaintiff may collect attorney's fees pursuant to 42 U.S.C. § 1988. Various state statues also specifically provide for attorney's fees. California Penal Code § 4030 (illegal strip searches) and California Civil Code § 52.1 (civil rights violations). However, when you vindicate an important public right, you may also recover your fees under California Code of Civil Procedure § 1021.5. Until late 2004, plaintiffs seeking fees under Section 1021.5 only need to have demonstrated that their efforts resulted in a substantial public benefit, that private enforcement was necessary, and that in the interests of justice the plaintiffs should not be required to pay the costs and fees associated with the litigation. Recently though, the California Supreme Court firmly adopted a requirement that plaintiffs also demonstrate that they attempted to resolve the dispute prior to initiating litigation in order to recover attorney's fees under Section 1021.5. Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553 and Tipton-Whittingham v. City of Los Angeles (2004) 34 Cal.4th 604. However, no matter what fee recovery mechanism is employed, parties on both sides of a civil rights dispute should factor attorney's fees and costs into their risk-reward analysis.

Separate from the fees and factual analysis associated with civil rights cases is the personal satisfaction that comes from resolving an issue that affects the broader public. In this regard, I find that all of my civil rights cases are rewarding and, to me, it is that sense of reward that really defines civil rights cases. Thus, in the last year, I've categorized as civil rights cases actions I brought on behalf of petitioners seeking access to shopping malls, health clinics seeking to safeguard access to their facilities, employees terminated because of their race, gender, and age, and electricians denied the opportunity to take a skills certification test in their primary language. All of these cases affected more than just the parties involved and all were personally rewarding.

If you are interested in learning more about practicing civil rights law, I encourage you to attend a meeting of the Sacramento County Bar Association's Constitutional Law and Civil Rights Section. The Section is currently working on a project to provide trial counsel for pro se state prisoners whose civil rights claims have survived summary judgment. This project should provide attorneys of all experience levels the increasingly rare opportunity to handle a federal trial and, more importantly, the opportunity to litigate some of the fundamental constitutional issues at the heart of our legal system.

May / June 2006