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Andrew J. Mathern

Excerpted from: Andrew J. Mathern, Federal Civil Rights Lawsuits and Civil Gideon: a Solution to Disproportionate Police Force? , 15 Journal of Gender, Race and Justice 353 (Spring 2012) (Student Note) (199 Footnotes Omitted).


The U.S. legal system does not sufficiently deter the use of disproportionate force by police. Federal civil rights lawsuits have the potential to deter because they require police officers to justify their actions in a formal setting, but victims of police brutality underutilize this mechanism. To provide an effective enforcement mechanism, federal courts and Congress should provide for the appointment of counsel for indigent claimants to pursue section 1983 actions when police brutality occurs. In support of this proposition, this Part: (A) criticizes existing legal remedies for their failure to deter police brutality; (B) argues that appointed counsel is an implied in the Constitution under the authority of Gideon v. Wainwright and Douglas v. California; and (C) outlines a proposed amendment to 1983 that requires federal district courts to appoint counsel for indigent plaintiffs in certain circumstances.

A. Current Legal Remedies Do Not Adequately Deter Disproportionate Force

Police brutality remains a widespread and prevalent problem in the United States, and it does not appear to be in decline. As discussed previously, there are a wide variety of legal and administrative measures that can provide a remedy for disproportionate force and deter police misconduct. These measures suffer from one major fault--they fail to deter police misconduct on a consistent basis. This fault is the result of the absence of consistent review of police misconduct with respect to the use of force.

If deterrence is measured as the extent to which an officer expects to be held accountable for disproportionate force, existing legal remedies are not a deterrent. There are three sources of authority that purport to hold police officers accountable, and all are markedly flawed. First, police departments (or review boards) may impose internal discipline upon an officer. Unfortunately, internal discipline is rare, and even in the unusual event that a review board sustains a finding of misconduct, only a private reprimand will result. Institutional realities, such as the power police unions exert and fellow officers' lack of cooperation with internal disciplinary proceedings, often impede legitimate disciplinary measures.

Second, government prosecutors can conduct department-wide investigations of police practices or bring criminal charges against individual officers. This approach is flawed because department-wide investigations target management and training policies and only indirectly deter individual officers. Even if management adopts new procedures, the institutional pressures mentioned previously may prevent reform of a police culture tolerant of aggressive policing. Commentators have strongly criticized the effectiveness of criminal prosecution because prosecutors rarely file charges against members of law enforcement.

Third, private citizens can hold police accountable by filing lawsuits. The problem with this form of police accountability is that many afflicted persons are unable or unwilling to pursue civil rights actions against police. Many cannot afford lawyers, and others are concerned that filing such lawsuits may lead to retaliation by law-enforcement agencies. These deficiencies are demonstrated by the fact that injured persons file very few lawsuits compared to the overall number of incidents of disproportionate force.

These faults can be collapsed into a single criticism: the lack of accountability apparent in the management of police violence is the result of an inconsistent enforcement mechanism for remedying disproportionate force. As reflected in Supreme Court Fourth Amendment doctrine, procedural rules governing police conduct can deter misconduct because police discretion is limited. One example is the exclusionary rule found in the Court's Fourth Amendment search and seizure doctrine. Broadly stated, if police fail to legally search or seize a person or evidence, the products of that search or seizure are suppressed and cannot be used against the defendant. This suppression normally occurs after a pretrial motion is filed and a hearing is held, during which the officer must testify about his actions. Because this rule requires police to follow exact procedures and has a strong enforcement mechanism, police are likely to follow proper procedures even in extenuating circumstances.

Any effective approach to police accountability should take heed and provide a procedural deterrent that puts officers in court soon after an incident involving disproportionate force. Naturally, police often seek to avoid court appearances, as the experience is often stressful, combative, and uncomfortable. Making officers come to court can therefore have a strong deterrent effect. Coming to court can also serve a useful educational role for police officers:

[The evidence] seems to suggest that testifying in court before a hostile adversary and an impatient and possibly skeptical judge has salutary effects: the officer must carefully consider whether he had a legally acceptable basis for his action; and whether this action might be questioned. The preparation for court appears to reinforce lessons so strongly that months and even years later some officers can remember exactly what happened and why evidence was suppressed.

Requiring police to justify their actions in a public setting also serves an important legitimizing function in a democracy. Requiring officers to come before the court will introduce greater accountability into police encounters with citizens, a characteristic the current deterrence framework strongly lacks. Arguably, police already receive sufficient training and know enough procedures to apply the correct amount of force. However, without an adequate enforcement mechanism that is consistently applied, seemingly random incidents of police brutality will continue to plague affected suspects, their communities, and the reputations of police departments.

B. Section 1983, Unamended, Does Not Adequately Deter Police Brutality

Supreme Court precedent continues to recognize a constitutional violation under the Fourth Amendment any time a police officer uses more force than is objectively reasonable under the circumstances. While the Court has weakened the practical enforceability of such a right, a sound legal basis exists to bring a section 1983 action any time an officer uses more force than is objectively reasonable under the circumstances. Therefore, the question in most disproportionate force cases is not whether a cause of action exists; there is generally a cause of action any time a police officer uses more force than is reasonably necessary. The real question is whether a plaintiff will bring a lawsuit given the economic and procedural difficulties that a section 1983 plaintiff must overcome. Adequate and reliable statistics about the number of section 1983 lawsuits filed against police are not available, but it is clear that aggrieved plaintiffs bring hundreds of such cases each year in federal courts. Despite this large number of cases, victims rarely bring such actions when police brutality occurs, and police generally do not fear that individuals will subject them to a lawsuit in the course of their duties.

Despite the failure of section 1983 actions to deter police misconduct on a consistent basis, civil rights lawsuits can be a vital tool to deter disproportionate force and provide compensation to victims. Judgments in such cases vindicate personal rights to physical autonomy, and adverse judgments often result in substantial embarrassment both for the officers involved and the police department. Section 1983 is therefore a tool that should be modified--not abandoned all together.

C. The Constitutional Right to Appointed Counsel To Pursue Section 1983 Actions

Sound constitutional principles support giving indigent plaintiffs the right to appointed counsel to pursue section 1983 actions when police use disproportionate force against them. Since Gideon v. Wainwright, indigent criminal defendants have had the right to appointed counsel for their defense to ensure the fairness of court proceedings. Likewise, the Supreme Court has ruled that indigent criminal defendants have the right to counsel for the first appeal from a criminal judgment, as well as to the right to have various costs and fees waived because of their economic status, under the theory that ability to pay should not inhibit a person's ability to benefit from basic due process.

1. Gideon v. Wainwright Supports a Right to Counsel To Ensure Adequate Representation

Gideon v. Wainwright and its progeny require courts to appoint counsel when a criminal defendant's physical liberty is at stake in the proceeding. In recent years, the Supreme Court read this liberty interest quite strictly, holding it only applicable when, as a result of the proceeding, a party is subject to imprisonment. In a section 1983 action, a plaintiff will not be subject to imprisonment if he or she does not prevail on his or her claim. However, an important principle that guided the Supreme Court in Gideon was that a lawyer is necessary to adequately represent the interests of a criminal defendant. Lawyers can navigate the labyrinth of the legal system and ensure that courts follow procedural due process protections in ways non-lawyers cannot. A lawyer is therefore a vital component of a person's ability to assert his or her rights effectively in a criminal prosecution.

Unfortunately, indigent persons are almost never able to challenge police brutality during their criminal prosecutions. Excessive force is very rarely the basis for a successful motion to suppress. Given the overwhelming prevalence of guilty pleas, officers very rarely have to explain their actions at trial. In most instances, the only time that excessive force is actually litigated is in a civil rights lawsuit. A victim of police brutality is therefore deprived of the benefit of counsel to challenge police brutality unless he or she can convince a private lawyer to take his or her case to pursue a civil rights lawsuit.

2. Douglas v. California and the Right of Access to Courts Support the Right to Counsel

Douglas v. California provides another constitutional basis for the right to counsel in section 1983 actions. The Court in Douglas held that the lack of appointed counsel for a criminal defendant in an initial appeal from a criminal judgment constituted invidious discrimination in violation of the Fourteenth Amendment's Equal Protection Clause. In its opinion, the Court relied upon existing precedent that held that a [s]tate may not grant appellate review in such a way as to discriminate against some convicted defendants on account of their The Court reasoned that, as previous cases found requirements such as the payment of transcript fees to be discriminately closing the doors of the legal system to indigent parties, the lack of counsel to pursue an appeal was invidious discrimination on the account of one's poverty.

Unlike Gideon, Douglas was not founded upon the physical liberty interest of the indigent defendant. Rather, the focus was on whether the defendant would be denied access to the courts based on the amount he could pay. The Court held that a state can provide for differences so long as the result does not amount to a denial of due process, or an invidious Therefore, a section 1983 plaintiff arguing for the appointment of counsel must show that he or she faced either constitutionally prohibited discrimination or an intentional desire to harm poor people and/or people of color.

Under current Supreme Court precedent, a claim that the lack of counsel in a section 1983 action is invidious discrimination would not likely succeed. There is no doubt that discrimination does occur in the sense that indigent persons simply do not have the same access to lawyers (and, thereby, courts) that privileged persons do. Unfortunately, the Supreme Court is unwilling to find a violation of equal protection based solely on the ability of indigent persons to pay, absent deliberate, intentional discrimination on the part of state actors. Moreover, the Court has generally been hostile to arguments that appointment of counsel in civil litigation is constitutionally required.

Despite the fact that most courts are unwilling to find an implied right to counsel in the Constitution, Douglas and Gideon represent important constitutional principles of which courts and legislatures should be cognizant. Like the physical liberty interest recognized as essential to the constitutional right to appointed counsel in the Gideon line of cases, a victim of police brutality faces a serious deprivation of his or her right to be free of arbitrary state action if he or she is unable to assert his or her rights with the help of an attorney. And like the right of access to courts recognized in Douglas, persons unable to afford counsel unfairly suffer the deprivations of police abuse because lawyers, and thereby courts, are simply unavailable as a tool for redress.

3. Lassiter and Civil Gideon Provide Additional Support for the Appointment of Counsel in Civil Rights Lawsuits

Recognizing inequity in the ability of indigent persons to enforce their rights in court, civil Gideon advocates have long called for courts or legislatures to require the appointment of counsel in some or all civil legal matters. This policy signifies progression of the principles of justice and fairness that have long been aspirational goals of the U.S. legal system. The question that these commentators have asked is the same asked by Justice Douglas in Douglas v. California: Why should the ability of a person to enforce his rights depend on the amount of money he has?

The Supreme Court dealt a blow to the civil Gideon concept in Lassiter. The plaintiff in Lassiter argued that the fundamental fairness aspect of due process entitled her to appointment of counsel in a termination proceeding in which the State was attempting to take her child away from her. The Court rejected this argument, even though thirty-three states mandated that persons be appointed counsel during child termination proceedings. The Court, while acknowledging that appointment of counsel may be a wise public policy, held that the Constitution established only minimal requirements that states are required to follow.

A closer reading shows that Lassiter may not have closed off all hope for civil Gideon advocates. In Lassiter, the Court based its decision, in part, on the fact that the proceeding contained no allegations . . . upon which criminal charges could be based . . . no expert witnesses testified, [the] case presented no specially troublesome points of law, [and] presence of counsel . . . could not have made a determinative difference for the petitioner. In contrast with a termination proceeding, a civil rights lawsuit under 1983 is a highly complicated proceeding in which lawyers matter a great deal. A civil rights lawsuit alleging excessive force requires a plaintiff to take on a powerful government organization and frequently involves difficult and troublesome evidentiary issues that challenge even experienced civil rights attorneys. For these reasons, the factual conclusions that formed the basis of Lassiter's holding do not squarely reject an argument that counsel should be appointed in more complicated legal proceedings.

The Supreme Court has not indicated that it intends to back away from Lassiter and reconsider the right to appointed counsel. While the holding of Lassiter may not require a district court to appoint counsel in section 1983 actions, its rationale nevertheless lends additional credence to the argument that Congress should amend the statute to allow for the appointment of counsel. Civil rights lawsuits often involve highly complex issues of law and evidence and will almost always require counsel for success. And as the Lassiter Court stated, appointment of counsel in such matters is enlightened and wise, even if not constitutionally mandated under current Supreme Court precedent.

D. Proposed Amendment to Section 1983: Appointment of Counsel To Pursue Claims of Disproportionate Force

The decision of whether to appoint counsel should be the responsibility of the district court judge who oversees the criminal prosecution, since he or she will be most familiar with the facts and parties and subsequent inconsistent holdings will not be an issue. The police officer should ideally have to justify his or her actions at some point early in the criminal prosecution. Otherwise, the current deterrent effect of section 1983 actions will likely not be improved.

The following is the author's proposed amendment to 1983:

(1) The criminal defendant files a motion during the preliminary phase of the prosecution to have counsel appointed to pursue a section 1983 action.

(2) The district court will be required to hold a hearing to decide if there are reasonable grounds to conclude that disproportionate force has been used. At the hearing, the police officer will have to justify his or her actions, subject to cross-examination. (3) The judge will then make a finding by a preponderance of the evidence whether disproportionate force has been used (defined by the objective reasonableness standard of Graham). If such a finding is made, counsel is appointed for defendant to pursue a section 1983 action after the conclusion of the criminal proceeding. These rights would only be available for indigent defendants, likely restricted to those represented by public defenders. This amendment is a dramatic change from current practice but is a practical solution to the problem of police brutality. Courts are already accustomed to holding a number of preliminary hearings before trial, and this hearing could be consolidated with a suppression hearing or other preliminary proceeding. This practice will negate the necessity of an entirely separate proceeding and prevent police officers from being at court multiple times for the same incident. This practice also serves the important deterrent effect mentioned previously, because if counsel is not appointed until after the trial, the police officer is essentially in the same position as in the current system--not having to justify his or her actions until well after the criminal prosecution.