Civil Rights

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Civil Rights Cases Can Be Extremely Complicated

Civil Rights cases can be extremely complicated. Unfortunately, it is not enough to just identify when your rights have been violated, you need to be aware of certain compulsory rules that are a prerequisite to being able to file a lawsuit. Also, tragically, just because your rights have been violated, does not mean that you will have a lawsuit worth pursuing, as the cost to you to file a civil rights lawsuit can be prohibitive.


Civil Rights FAQ

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

The Rockefeller Law Center has helped clients vindicate their federal civil rights (or suing a governmental worker or entity for state violations) entity in a wide range of instances such as claims of excessive force, wrongful arrest, deficient medical care, and premises liability.  The Rockefeller Law Center has purposed such cases in State and Federal courts throughout the Southeastern United States.

When can I sue the government or a governmental employee because of personal injury or violation of my civil rights?

All levels of governmental entities and their employees or actors are protected by something called “sovereign immunity.”  This means that they are “immune” from (or cannot be) sued, EXCEPT in limited arguments (like a breach of contract claim).  There are exceptions where the governmental entity has “waived” its immunity for causing personal injury or violation of your rights if you comply with certain notice provisions.  

Georgia has a “Georgia Tort Claims Act,” defining the rights and the process for suing the State of Georgia and the United States of America has a “Federal Tort Claims Act” which serves the same purposes.  When you have a claim against the State of Georgia or the United States of America, these Tort Claims Acts allow you to sue as if the State or Federal governments were private entities for simple acts of negligence.  These two (2) statutes offer some the easiest method for avoiding the bar of immunity to a suit when injured by the acts of a governmental employee or actor.

However, county, city entities and other local entities (like school boards) are not covered by Georgia’s Tort Claims Act, and are sued directly generally only for having a wrongful policy or custom.  This makes suing them almost impossible.  EXCEPT in motor vehicle wrecks, if there is insurance (which acts as a waiver of immunity up to the limits of the insurance policy), you can sue the entity if you comply with the notice requirements.  These automobile wreck lawsuits have a fairly high chance for success – so, get your notice requirements taken care of promptly!

Suing a governmental actor is different.  First, you can NOT sue a governmental actor through a tort claims act, as described above.  Similarly, you do NOT sue the actual operator of a governmental motor vehicle.  In all of these instances, you are ONLY suing either the State of Georgia or United States of America.

Second, a state governmental actor is going to be protected by a form of immunity called “official immunity” (which makes it hard, but not impossible to sue in state courts) EXCEPT for civil rights violations.  The federal governmental actor enjoys the protection of sovereign immunity EXCEPT for something called a “Bivens” action, which is similar to suing for a civil rights violation.  There are not any “notice” requirements for these types of lawsuits.

There are also specific employment rights guaranteed by several federal and state statutes.  This involves completely separate analysis and is not being discussed or analyzed herein.  You CAN, however, sue for a “civil rights” violation in an employment context, it just has to involve a constitutional violation.

How do I decide if I can sue in a Federal or State Court?

The answer this can depend on what type of claim is raised.  42 U.S.C. §1983 is the federal statute which lets a citizen sue in either of Federal or State courts for a violation of a constitutional right or right guaranteed by Federal law.  When we think of a “civil rights” violation, this is the statute we are technically describing.  There is no pre-suit notice that has to be given for a civil rights lawsuit.

A “Federal Torts Claim Act” lawsuit can only be brought in a Federal District Court.  It has several unique characteristics.  One, you must make file a properly executed and timely pre-suit claim with the department of the federal government responsible for your injury.  Two, you can only recover up to the amount of this pre-suit claim.  Third, there is not right to a jury trial in a FTCA lawsuit, as only the district court judge decides if your rights were violated and, if so, the amount of the award.

The State of Georgia cannot be sued itself in Federal Court; you CAN sue the individual employee in Federal Court for a civil rights violation.  This is a different type of sovereign immunity.  So, the only way to sue the actual State of Georgia is in a state court, pursuant to the “Georgia Tort Claims Act.”  To do so, you must make a properly executed and timely pre-suit claim with the department of the state government responsible for your injury AND the risk management agency handling claims against the State.  

A “Federal Torts Claim Act” lawsuit can only be brought in a Federal District Court.  It has several unique characteristics.  One, you must make a properly executed and timely pre-suit claim with the department of the federal government responsible for your injury.  Two, you can only recover up to the amount of this pre-suit claim.  Third, there is not right to a jury trial in a FTCA lawsuit, as only the district court judge decides if your rights were violated and, if so, the amount of the award.

When you are talking about a local governmental entity, such as a county, city, or school board, you can certainly sue in Federal Court for a civil rights violation (which is in contrast to the State of Georgia itself).  And, you can sue the entity in State Courts, if you make a properly executed and timely pre-suit claim with the local government.  If suing the entity, unless you are suing for a motor vehicle wreck, the entity can generally only be sued for a wrongful policy or custom.

Finally, the local governmental employee or actor can be sued directly in both State and Federal Court.  There is no notice requirement to do so.

What are the main concerns in suing a government or governmental actor or employee?

As with other sorts of civil litigation, there are two (2) components to suing the government or its employee or actor.  First, liability must be determined.  This 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 (42 U.S.C. §1983) 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.  This means that attorney’s fees can be an important part of the claim, which is in contrast to other types of lawsuits.

What types of specific immunities are available to the government or its employee or actor in Federal Court?

There are three (3) different types of immunity.  Federally, pursuant to case law interpreting 42 U.S.C. §1983, there are two (2) judicially created defenses called “absolute” and “qualified” immunities.  Both of these concepts mean what they say (“absolute” means you cannot sue, “qualified” means you might be able to sue) and are available to individual governmental employees or actors, as opposed to a governmental entity.  Finally, there is something called “sovereign” immunity, which is enshrined in the 11th Amendment of the United States Constitution.  This is available only to States, which cannot be sued in Federal Court without their permission for money damages.

“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, prosecutors, and legislators, when this actor is acting in conjunction with their job.  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.  So, typically, you cannot sue State “entities” in Federal 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.

Can I sue a governmental entity for a civil rights violation in Federal Court and seek money damages?

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 (such as the Federal Tort Claims Act).

With State entities, it is trickier since the entity may be protected by sovereign immunity – it all depends on how State law defines the entity.  The State of Georgia is a definite “No”; counties, cities, and entities like school boards, you may be able to do so.  State prisons, the Georgia Bureau of Investigations, the Department of Transportation, the Attorney General’s Office . . ., etc. – these are all examples of departments of the State of Georgia and are not subject to suit in Federal Court for money damages.  Also, if you sue the State of Georgia in State Court (alleging Federal violations), then the State can have the case removed to Federal Court.  However, if the State of Georgia 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.

If you have a viable civil rights action for money damages in Federal Court, this is sometimes called a “Monell” action, after the name of the case authorizing such lawsuits.  However, as discussed above, you are only suing the entity for an unlawful policy or custom (which also needs to be a moving force behind the civil rights’ violation).  This is a very, very difficult claim to successfully prove.

How do I sue one of these Georgia entities in Federal Court for a civil rights violation with this “Monell” claim?

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.

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.

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.

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).

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; the State of Georgia and counties are entitled to twelve (12) months (municipalities receive six (6) months) advanced written notice of your intent to sue.  This has been done within the stated time period from the date of injury.  These statutes are very particular on who has to receive the notice (and how) in order to preserve your right to sue; you do NOT have to provide an individual actor with this notice, to preserve your right to sue the individual actor.  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.

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.  First, you generally can NOT sue an individual State of Georgia actor or employee; you are limited to those rights defined by the Georgia Tort Claims Act.  When you are talking about other categories of individual governmental actors, they are 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.  Again, because the law is so particular, this is something you will want to consult with an experienced attorney, before you proceed with a lawsuit or abandon the idea of one.

How do summary judgment issues affect my right to sue?

Because of how civil rights cases and claims against state entities and actors 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 case 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.

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 before your claim gets to a jury.

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