Civil Rights FAQs

1. What are the types of civil rights cases that the Rockefeller Law Center handles?

The Rockefeller Law Center is a full-service litigation law firm, having assisted numerous satisfied clients with employment discrimination, wrongful death, police brutality, and prisoner's rights cases in State and Federal courts throughout the Southeastern United States.

2. What are the main issues which come up in civil rights cases?

As with other sorts of civil litigation, there are two (2) parts to a civil rights lawsuit. First, liability must be determined. T his answers the question whether or not the defendant engaged in any wrongful conduct. Second, damages must be assessed. This determines how much money should be paid to the plaintiff because of a defendant's wrongful conduct. (You may want to review the FAQs on "personal injury cases" which does an excellent job of explaining these general issues and can answer your general questions.)

However, one of the differences in civil rights cases is that it more common to be concerned with curbing future behavior. Thus, if the entity is being sued, it is likely that one of the goals of a civil rights plaintiff is to have a "consent" decree agreed to and/or to seek an "injunction" against the complained of activities.

What is unique to a civil rights case are "immunity" issues, since you are generally suing the government or government employees in the context of a claim of civil rights cases. You also have distinct theories permitting you to sue in either Federal Court, for violations of federal law, and/or in State Court, for violations of state law. Thus, civil rights litigation is extremely complicated.

3. What types of immunity are available in Federal Court?

There are three (3) different types of immunity. Federally, pursuant to case law interpreting 42 U.S.C. § 1983, the general civil rights statute, there are two (2) judicially created concepts of "absolute" and "qualified" immunity. Both of these concepts mean what they say and are available to individual actors, as opposed to entities. Finally, there is something called "sovereign" immunity, which is enshrined in the 11th Amendment of the United States Constitution. This is available only to entities; although, sometimes an individual is considered an "entity."

"Absolute" immunity is absolute or complete and you cannot sue an actor protected by this form of immunity. Examples of governmental actors protected by this form of immunity include judges and prosecutors or actors that have a judicial role – legislators would be another example. This list is very limited.

"Sovereign" immunity is also absolute. What it says, essentially, is that the sovereign states are not subject to lawsuits for money damages in Federal Courts, UNLESS there is a specific law granting the right to sue for money damages in Federal Court. So, typically, you cannot sue State "entities" in Federal Courts (or even in state courts) for money damages for violations of 42 U.S.C. § 1983. While this is true, you can still, generally, sue an individual state actor, unless the actor is considered to have the same protected legal status as the state. Also, you can still sue a State entity to curb unconstitutional policies, such as the school desegregation lawsuits, just not for money damages.

"Qualified" immunity is a conditional form of immunity; most of the litigation we see involves qualified immunity.. It involves a two (2) step process. A plaintiff, first, has to show that there was a violation of a "clearly established" constitutional right. For instance, it is "clearly established" that a law enforcement cannot use excessive force during an arrest, as set forth by the protection of the 4th and 14th Amendments of the United States Constitution (similarly, the 8th Amendment protects against excessive force used in the prison environment). There is quite a bit of litigation on what is a "clearly established" right and what is not.

Assuming the plaintiff successfully shows a clearly established right was violated, the defendant actor shifts the analysis to demonstrate that he/she acted "objectively reasonable," as judged by the standard of an "objectively reasonable" actor. Thus, the "intent" of the official is generally irrelevant (such as in situations where there is an allegation that the official acted out of a discriminatory intent). There is also quite a bit of litigation on whether or not the actions of the defendant actor met these standards.

4. Can I sue a governmental entity for a civil rights violation in Federal Court?

Maybe. In part, the answer depends on whether or not you are seeking to sue a Federal entity or a State entity. If you are trying to sue the Federal government, you are limited to suing only for an injunction or to reverse an illegal policy, since you cannot sue the Federal government for money damages, UNLESS there is a specific law granting the right to sue for money damages. For Federal actors, like FBI special agents, you are limited to suing the individual actor in what is called a "Bivens" action after the case of that name. The "qualified immunity" analysis of a Bivens action against an individual Federal actor is exactly the same as against a State actor.

With State entities, it is trickier since the entity may be protected by sovereign immunity, as touched upon above, or it may not – it all depends on how State law defines the entity. If you are able to sue the State entity, this is sometimes called a "Monell" action, after the name of the case authorizing such lawsuits. Also, if you bring you sue the State entity in State Court, alleging Federal violations, then the State can have the case removed to Federal Court. However, if the State does this, it may lose its sovereign immunity protection because the State is deemed to have voluntarily subjected itself to the jurisdiction of the Federal Court.

5 What types of Georgia entities can I sue in Federal Court for a civil rights violation, without having to worry about sovereign immunity?

In answering this question, the key factor is whether or not the entity is the "State of Georgia" or one if its departments or if the entity is a merely a creature created by State law. For example, counties (generally) and cities are not considered to be arms of the State of Georgia. Similarly, local school boards are also not the State. However, State prisons, the Georgia Bureau of Investigations, the Department of Transportation, the Attorney General's Office . . ., etc. – these are all examples of State of Georgia entities not subject to suit in the State of Georgia. Keep in mind, even if you cannot sue the entity, you can still sue the individual actor.

6. How do I sue one of these Georgia entities in Federal Court for a civil rights violation?

An entity is sued through its customs, policies, or procedures and/or through the actions (or inactions) of a "final policy-making official." Thus, you first have to define the unconstitutional custom, policy, or procedure and/or the unconstitutional actions of the final policy-making official. If you are suing a municipality, you sue it through its final policy-making official (generally the mayor or, in some jurisdictions a "city manager); if you are suing a county, you sue through the chairperson of the county board of commissioners (you sometimes also name the whole board).

In addition to naming the final policy-making official, there may be another individual named as a department's policy-making official, whose decisions are deemed to be those of the entity. For instance, if you are suing a municipality for police brutality, you might name the Police Chief, as a policy-making official for the police department, because of his/her individual decisions or decision to adopt an unconstitutional custom, policy, or procedure.

However, you have to careful about suing a County for the actions of its Sheriff's Department, as sometimes the Sheriff is considered to be a State actor and sometimes not. It depends on the reason you are suing the County – where the Sheriff is considered the State, you cannot even sue the County for the Sheriff's Departments alleged unconstitutional custom, policy, or procedure, since the Sheriff IS the final policy-making official for the County (there is no one above the Sheriff) and, if he/she is "the State," the Sheriff is immune from suit (as is, therefore, the County). Of course, if there were also individual deputies (not the actual Sheriff) who engaged in unconstitutional actions, the individual deputies can still be sued, even if the Sheriff and the County cannot.

7. Can I sue a Georgia government entity for violating my rights in State Court?

Yes. The Georgia Legislature has passed a law, partially waiving the immunity for the actions of government actors of the various entities of the State of Georgia, for lawsuits filed in Georgia courts, by the "Georgia Tort Claims Act" and/or by statutes specific to Counties and Municipalities. This provides for a limited waiver of immunity for lawsuits against State and County entities – for municipalities there is a separate statute partially mirroring the GTCA – in certain narrow circumstances. Generally speaking liability is waived for failure to act in accordance with a "ministerial" act, one which is a simple, mandatory action, required under a law or policy – such as the requirement to respond to a 911 call; but, NOT for failure to perform "discretionary" acts – such as when to make an arrest or how to respond to a 911 call.

Liability for a State or County entity is also NOT waived, where the government actor commits an "intentional" tort, such as an assault or battery – as this is a part of the GTCA, this specific limitation is not applicable to Municipal entities. Thus, if State or County actor negligently uses excessive force, in violation of a ministerial duty to only use reasonable force, the entity may be liable, but NOT if the actor intentionally caused injury. Of course, in the latter circumstance, the individual actor would clearly have violated the injured citizen's rights.

With respect to injury caused by the negligent operation of a motor vehicle, the waiver is fairly broad. There is a separate narrowly specific statute, which requires State, County, or Municipal entities to purchase automobile liability insurance for acts of simple negligence of government actors from the operation of motor vehicles. And, it provides for fairly high ceilings on the resulting liability – depending on when the cause of action accrues, this waiver for bodily injury damages is up to $100,000.00 (after January 1, 2005), up to $250,000.00 (after January 1, 2006) and up to $500,000.00 (after January 1, 2007).

8. Are there any specific rules for suing a Georgia government entity for violating my rights in State Court?

Yes. In order to preserve the right to sue in state courts, you have to comply with strict "ante litem" or notice provisions; States are entitled to twelve (12) months (municipalities receive six (6) months) advanced written notice from the date of injury, before suing the State or Municipal entity; with Counties, the time-frame is twelve (12) months, as with the State, but you do NOT have to provide advanced written notice, as the filing of a complaint is deemed substantial compliance with the notice provisions. These statutes are very particular on who has to be sued AND that you have to prove that the proper written notice was actually received within the relevant six (6) or twelve (12) month period; you do NOT have to provide an individual actor with this notice, to preserve your right to sue. Because the law is so particular, this is something you will want to consult with an experienced attorney, before the requisite time runs out to provide the ante litem notice.

9. Are there specific immunity rights protecting government actors from lawsuits filed in State Court, similar to those in federal civil rights cases?

Yes. But, the relevant immunity is called "official" immunity. The analysis often ends up with the same result, yet it is very different. Borrowing from the waiver language in the GTCA and in the analogous Municipal statute, an individual governmental actor is protected from suit, where he or she has "discretion" on how to act; there is no protection for failure to act in accordance with a "ministerial" (mandatory) act.

This distinction can be tricky. In addition to the examples above, consider a claim for an illegally maintained roadway. Where a governmental actor has discretion over how to build a road, or how to inspect a road, the actor is protected from suit by "official" immunity. On the other hand, the failure to build a road according to accepted mandatory engineering practices, or the abject failure to inspect the safety of a road damaged by a flood, may not be protected by "official" immunity.

10. Can I sue a private actor for violating my civil rights?

Yes. This issue really does not come up under State law, since there are state laws permitting the suing of a private individual (or entity) for various types of injuries, but it is an issue that is more and more prominently featured in Federal lawsuits under 42 U.S.C. § 1983.

Traditionally, if a private individual (or entity) uses the machine of government to accomplish an illegal goal, the private individual (or entity) can be sued for a civil rights violation. For example, if an apartment complex hires a police officer to provide security in an apartment complex, and the officer negligently investigates the report of a rape; the victim could claim a constitutional right to have the report investigated. The officer will probably be protected by "qualified" and "official" immunities, but the apartment manager and/or owner could both be liable for negligently not having a policy requiring the officer to take specific actions in response to a claim of rape. You should note that, if the officer was acting "on the job" the government entity would have to have an unconstitutional policy, not merely a negligent one.

But, the reason there is an increase of civil rights lawsuits against a private individual (or entity) is very simple – "privatization" or the tendency to pass on traditionally governmental responsibilities to private actors. For example, county jails have a state-imposed responsibility to provide medical care to their inmates, while the constitutional imposition is only the requirement of some medical care. However, many county jails hire a private company (or individuals) to provide this state-imposed medical care for inmates. Thus, the responsibility of the county to do so is passed on to the company and, if that company (or individuals) adopts policies meting out medical care in very minimal degrees, an inmate harmed by that policy can sue for negligence in the adoption of such parsimonious policies, in violation of the inmate's civil rights. On the other hand, the county probably could not be sued for hiring this private company and DEFINITELY could not be sued just for just having a "negligent" policy, either adopted by the county or by the private company.

11. Why are these Federal immunity rules so important; why can't I just sue anyway?

The reason these rules of immunity are so important is because of a legal procedural rule called "summary judgment." A party to a lawsuit, can seek "summary judgment" on any issue and, in civil rights cases, government (individual or entity) defendants file for one to frustrate a plaintiff seeking justice for a wrong. When the government defendant files for summary judgment, the judge is asked to consider the various immunity issues and decide if the plaintiff can continue with civil rights lawsuit. If the judge grants the government defendant's request for summary judgment, the lawsuit comes to a screeching halt and the plaintiff either has to go through an expensive, and often fruitless, appeal process or drop the lawsuit – without ever getting to present the case to a jury!

This is particularly frustrating where the judge is considering whether or not a "right" is "clearly established." In deciding this issue, the judge looks to see if there has been a nearly exact prior court ruling or specific statute outlawing the complained of activities. Where there is no such exact ruling and specific statute, the judge might find the complained of activities to be reprehensible, but the government defendant receives a "free" pass, because of the lack of prior clarity that specific actions would be a violation of a citizen's rights. Henceforth, there would be such a ruling, but not for the suing plaintiff left with no remedy for the, now, admitted violation of his/her constitutional rights.

The quirks of this analysis might be illustrated by the argument that while shooting into the passenger compartment of a moving vehicle might be "clearly established" as unconstitutional, merely shooting AT the vehicle might not be.

12. Is the summary judgment analysis the same for a state civil rights lawsuit?

No. While it is sometimes tricky to distinguish between discretionary acts and ministerial acts, with state law civil rights analysis you do not have the absurd result suggested by the federal analysis, i.e., that a wrong might be found to have been committed without a remedy. This is because there is technically no requirement that a ministerial obligation be "clearly established." However, the same principle applies, e.g., if you cannot defeat the state immunity defenses at summary judgment, the case dissolves.

13. How does summary judgment issues affect my right to sue?

Because of how civil rights cases are decided, particularly in federal cases, it is common to lose cases at summary judgment. Therefore, Plaintiff's Attorneys have to be very cautious about taking on civil rights cases. Generally speaking, Plaintiff's Attorneys look for cases where the law appears to be clearly established AND there are catastrophic, or near-catastrophic, injuries. For this reason, other than where a non-profit organization, like the American Civil Liberties Union or Southern Poverty Law Center, is willing to take on the case, only a plaintiff with monetary resources can afford an attorney to sue over an "insult" injury, like school prayer cases.

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