At a recent celebration of the Pine Tree Riot in Weare, some of the chat turned to the question of what recourse does a citizen have when government actors (“officials”??) infringe on a person’s constitutional rights based upon a claim of a violation of a statute, ordinance, regulation, custom, or usage.
While this writer has handled some federal litigation in the past, he has not done civil rights litigation, but is generally aware of certain federal statutory rights, as follows.
Section 1983 of Title 42 of the United States Code provides as follows:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”
As to the question of whether attorneys’ fees can be awarded in any such a matter, Section 1988 of Title 42 of the United States Code provides as follows:
“(b)Attorney’s fees: In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92–318 [20 U.S.C. 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C. 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C. 2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], or section 12361 of title 34, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction.
(c)Expert fees: In awarding an attorney’s fee under subsection (b) in any action or proceeding to enforce a provision of section 1981 or 1981a of this title, the court, in its discretion, may include expert fees as part of the attorney’s fee.”
[emphasis added]
Obviously, it would have been nice if Congress had provided in these provisions that the Court “shall” make an award of attorneys’ fees rather than leaving it to the court’s “discretion,” but we must live with the law as we find it until it is changed.
Unfortunately, the biggest challenge for someone aggrieved is finding lawyers who are willing to take on such a matter. Some organizations, such as the Institute for Justice, might use their limited resources in such a case, but they are probably inundated with requests for legal help.
Just so you know.
