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.