Arizona's new immigration legislation wasn't enough to make me think of moving there. The thing that caught my ear is a provision in the law giving ordinary citizens a private right of action if the police do not do their job. It's enough to set me to thinking about packing my bags and heading Southwest.
The law is a civil rights lawyer's dream come true.
Forget for a moment the inevitable clash of the sovereigns: Is the legislation merely an extension of the state's police power? Or does it intrude upon an area that is the province of federal law? This legal question will be resolved by the courts quickly. Most likely the courts will duck the issue. After all, when have the courts ever shied away from the notion of concurrent sovereignty -- two governments policing the same turf, punishing the same offenses?
The jaw-dropping part of the bill comes in the creation of a right for ordinary citizens to sue police officers for money damages. Here's the provision of the law that caught my eye:
G. A PERSON MAY BRING AN ACTION IN SUPERIOR COURT TO CHALLENGE ANY
OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE THAT ADOPTS OR IMPLEMENTS A POLICY THAT LIMITS OR RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT PERMITTED BY FEDERAL LAW. IF THERE IS A JUDICIAL FINDING THAT AN ENTITY HAS VIOLATED THIS SECTION, THE COURT SHALL ORDER ANY OF THE FOLLOWING:
1. THAT THE PERSON WHO BROUGHT THE ACTION RECOVER COURT COSTS AND
ATTORNEY FEES.
2. THAT THE ENTITY PAY A CIVIL PENALTY OF NOT LESS THAN ONE THOUSAND
DOLLARS AND NOT MORE THAN FIVE THOUSAND DOLLARS FOR EACH DAY THAT THE POLICY HAS REMAINED IN EFFECT AFTER THE FILING OF AN ACTION PURSUANT TO THIS SUBSECTION.
Unless you have practiced law in the area of federal civil rights for the past 20 years, you won't appreciate just how stunning this is.
In the area of police misconduct litigation, the courts are in wholesale retreat from justice. Very few claims make it to trial any longer, an activist conservative judiciary has seen to it by creation and application of legal doctrines spun whole cloth from the minds of judges. Police officers enjoy a broad qualified immunity from suit. You can't touch them. And just how broad is that immunity?
The Practicing Law Institute in New York holds an annual seminar on litigation arising under 42 U.S.C. Section 1983, the vehicle for raising money damages claims against state actors in the federal courts. Fifteen years ago, the two-volume practice aid distributed at the seminar had a chapter on qualified immunity. Now the section on immunity fills the entire second volume, and, in the past few years, the second volume has come to be fatter than the first. Moral? The courts will spend more time and energy deciding how to keep officials out of court than contending with claims in a courtroom. Vanishing trial? No. Insurgent judiciary.
Arizona's move to invite civil rights lawyers into its courtroom is a bonanza for the likes of me. I used to file scores of federal civil rights claims in a year. Now I file a couple, and struggled to get those past all the judicial obstacles to trial. In Arizona, the doors are flung wide open.
What's more, Arizona is doing something no federal court has done: It has created a right of action for citizens who want to sue because a police department is not doing its job. These so-called failure to protect claims have been a dead letter in federal courts for decades. The government's duty to protect you is largely unenforceable.
But Arizona is generous. Under federal law, a plaintiff must show actual injury. In Arizona it is enough to say a cop isn't doing his job. What are your damages for the violation of this somewhat abstract right? You needed prove them. Arizona guarantees you $1,000 to $5,000 a day plus attorney's fees for violations resulting from unlawful policies. This is taking posse comitatus to the courtroom.
This is pretty amazing stuff, but there's yet more.
Most often, a civil rights law is designed to protect a vulnerable minority from those in power. Read up on David's struggle versus Goliath when you swagger into a courtroom on behalf of the downtrodden. Arizona's law creates a crazy new dynamic: Are the cops not repressive enough? Then sue to make 'em snap the whip with more alacrity. The new law deprives police of discretion when applying one of the law's most amorphous standards -- reasonable suspicion.
There's a gold rush forming on in Arizona. Anyone out there care to enlighten me on how to seek admission to the courts of that state? Or better yet, any lawyers out there looking for experienced counsel in civil rights action to serve as of counsel in testing this law?
This law will not last long. Arizona can't afford it. In the meantime, I'm looking for cowboy boots and a hat. Yoo-hoo!