“I don’t like lawyers that sue for money.” That is what a woman recently told Anya Bidwell, an attorney at the Institute for Justice, a nonprofit law firm dedicated to government accountability and upholding the Constitution.
America has a bad rap for being litigious. But our intentional separation of civil and criminal law is a fundamental part of Anglo-American jurisprudence and is meant to provide an alternative route to enforce our civil rights and liberties, separate from the criminal justice system.
We see this strategy being used to its fullest with this week’s filing of a federal civil lawsuit by the Washington, D.C., attorney general seeking financial damages from the Jan. 6 insurrectionists. And that’s a good thing.
Here’s why.
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Attorney General Karl Racine announced Tuesday that he was filing a civil action for damages under the Ku Klux Klan Act of 1871. That makes for the third lawsuit of its kind in less than a year against the insurrectionists (the others were brought by Rep. Bennie Thompson, D-Miss., and seven members of the Capitol Police).
While many may not know about the KKK Act, reliance on this law is not unique to activists looking to seek justice after the attack on the U.S. Capitol. For instance, it was also the basis of a civil rights lawsuit in the recent case against the white supremacists in Charlottesville, Virginia. And activists and progressive lawmakers have turned to the KKK Act after efforts at federal criminal justice reform and government accountability stalled, as we witnessed with the recent failure in Congress to pass the George Floyd Accountability in Policing Act.
Civil rights attorneys have been relying on the same Reconstruction-era law to try to hold a host of government officials civilly accountable for constitutional rights violations, for instance, Fourth, and Eight Amendment violations by government employees. But since the 1980s, plaintiffs have faced considerable obstacles based on the court-created doctrine of qualified immunity, which doesn’t appear in the Constitution or in the KKK Act.
Faces, victims, issues and debates surrounding qualified immunity: A USA TODAY Opinion series
Qualified immunity is a judge-invented doctrine conceived in the Jim Crow era of the late 1960s, and it basically shields government workers from civil liability, regardless of how egregiously they violated someone’s constitutional rights, unless there was a prior case with nearly identical facts, in the same jurisdiction, that allowed for money damages.
Utilizing laws that provide for civil damages, specifically the KKK Act, is a powerful strategy to seek justice for constitutional and civil rights violations.
Take an accident on the job of a factory floor that leaves you with physical injuries and emotional distress. You’re afraid to go back to work, which causes you mental and emotional anguish. When you finally do try to return to the job, your back hurts terribly because of the injury. The idea of bringing a lawsuit for this on-the-job incident is that your employer should make you “whole” again; it is their responsibility.
The same idea applies to your constitutional and civil rights, regardless of whether an individual or a government official violated those rights.
And that was always the Founders’ intention.
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There is no enforcement mechanism contained in the Constitution other than the Sixth and Seventh Amendments, which guarantee jury trials in criminal and civil cases, respectively. Using civil lawsuits to seek justice for violations of rights and liberties, however, was standard practice in the 18th century common law. It was, for instance, through a civil lawsuit that Dred Scott argued that his rights had been infringed. It appears that our Founders just assumed we would continue to lean on the civil law system to enforce the majority of our constitutional rights.
The civil law system is not just for “ambulance chasers”. Instead, it is the other half of our legal system, and a powerful way to enforce Americans’ civil and constitutional rights. In a country where capitalism reigns, if we face pushback on criminal justice reform efforts, then we have to hit ’em where it hurts.
And in the United States of America – that’s the pocketbook.
Carli Pierson, an attorney, is an opinion writer at USA TODAY Opinion. Follow her on Twitter: @CarliPiersonEsq
This column is part of a series by the USA TODAY Opinion team examining the issue of qualified immunity. The project is made possible in part by a grant from Stand Together. Stand Together does not provide editorial input.
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