Rights and Remedies

Americans today have more rights on paper than ever before, says Gabriel Harvis of EEP Law. But the ability to seek justice when those rights are ignored is a complicated legal calculation of harm, venue and precedent, often with narrow margins.

“The real question isn’t what rights do we have, but what can you do when your rights are violated? It’s a foundational principle of our system that in order for a right to have meaning, it has to have a remedy. For a victim, it’s ‘damages or nothing,’” Harvis says, quoting a line famous in his field—from the 1971 U.S. Supreme Court case Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, in which Justice John Marshall Harlan made the point that since the government can’t undo an illegal raid or false arrest, the only other remedy is money.

However, says Harvis, “increasingly, because of changes in the law, it’s pretty much nothing for many victims in our society.”

Take the case of his client Erick Diaz Cruz, who came to the U.S. on a valid visa to visit his mother. Diaz Cruz was shot in the face by an ICE officer during a 2020 encounter in which he was a bystander. Even if he wins his civil rights case, there are no punitive damages available because of statutory limitations.

“That case illustrates a lot of the systemic challenges that a civil rights plaintiff, even with the most righteous case, will face in the current environment,” Harvis says. “You see that a lot in the context of rights violations by federal officials.”

The ability to have a case succeed or even heard in court varies vastly depending on who violated your rights, say the civil rights attorneys we spoke with. For example, it’s more difficult to pursue a case against a federal agent as compared to one against a New York City police officer. 

That’s because New York City has its own law (Local Law 48, passed in 2021) that makes it easier to sue NYPD officers for police misconduct by banning qualified immunity, a judicial standard that shields officials from liability unless their conduct violated a “clearly established” right. That’s not to say that cases against police are easily won; it’s that those involving federal officers are that much harder.

Qualified immunity, says Luna Droubi of Beldock Levine & Hoffman, “allows officers to get away with murder, quite literally.” Droubi works on wrongful death cases, like that of Win Rozario, the 19-year-old who was shot in his home after calling police during a mental health crisis. She’s also represented the family of Eric Garner. “What is ‘clearly established?’ What does that even mean? You obviously shouldn’t strangle someone or step on their neck, but qualified immunity results in some judges dismissing a case when there’s no identical past case.”

The legislature has considered bills to end the use of qualified immunity as a defense in all New York state courts. Though the legislation has yet to pass, Andrew Laufer, the founder of The Law Office of Andrew C. Laufer, considers the climate for bringing civil rights actions in New York a generally welcome one.

“Here in New York City, as far as I’m concerned, if you’re stopped, questioned, and frisked for no reason by someone at NYPD, it’s actionable,” he says. “They want us to address even the most minor violations where maybe the damages end up being minimal, but you get attorney fees on these cases. You’re still fighting to preserve an individual’s constitutional rights, so it’s important.”

Though many of his cases are against local police, in recent years Laufer has also taken on the Drug Enforcement Administration in a case where the wrong apartment was raided and a group of women in their 70s were thrown to the ground with guns pointed in their faces. He’s also represented journalists who had their equipment forcefully taken by ICE agents while exercising First Amendment rights this past year.

“If you have a gun pointed in your face and you’re put in fear, which any normal person would be, that’s actionable,” he says. “If you’re pepper-sprayed, if you’re thrown to the ground, if you’re handcuffed, it’s something that attorneys may consider taking. It depends on how far it goes. I usually have a threshold for how long the detention is, how severe the injury is, how egregious is the conduct of the officers.”

Laufer advises anyone who thinks they’re in the midst of a wrongful arrest or excessive force encounter to first stay calm and not resist or escalate the situation—but to also know they don’t have to answer any questions and should ask for a lawyer.

“The most important thing initially is to get through the system,” he says. “Once you’re released, if you’re injured, get treatment, go to the hospital. Then, once you’re a little bit more collected emotionally, reach out.”

Most civil rights lawyers will offer a free consultation with information about your potential for a case, along with the relevant statute of limitations. If a lawsuit is not likely to succeed, they should be able to refer you to resources like the NYC Civilian Complaint Review Board for police misconduct, or to the NYC Commission on Human Rights to investigate discrimination in employment, housing or public accommodations.

Though she can’t help everyone, Droubi says it’s still worth talking to a lawyer and that victims often don’t realize the larger scale of the wrong they’ve suffered. “We try to optimize creating systemic change,” she says. “When somebody comes to us, we try to see the bigger picture. Are we seeing trends?”

She’s been pursuing the lawsuit Greene v. City of New York for six years, seeking class action status and an injunction to remove police from front-line response in mental health-related situations. Not all cases result in deadly force, as in Rozario’s; sometimes they involve forcibly transporting people to the hospital or humiliating them with an excessive response, but, Droubi says, they fall into the same pattern of problems arising from police responding to mental health situations they are not trained to handle.

A recently trending issue in Laufer’s caseload is law enforcement relying on artificial intelligence to justify probable cause for arrests. His client Trevis Williams spent two days in jail after facial recognition software identified him as a suspect in a sexual assault, even though he was several inches taller than the suspect and 12 miles away at the time of the crime.

“That’s the biggest issue I see currently that’s threatening our civil rights,” he says. “We need police officers to not rely too heavily on AI; not solely use it as a basis for probable cause.”

For Droubi, whose family immigrated to the U.S. from Syria, the most “gut-wrenching” civil rights work today is fighting illegal ICE detentions, including that of Mohsen Mahdawi, the Columbia University student and lawful permanent resident who was targeted in retaliation for pro-Palestinian speech.

“The writ of habeas corpus is a bedrock constitutional protection; it ensures that the government cannot arrest people arbitrarily,” she says. “Whether noncitizens are guaranteed that same right is a long-standing principle that is currently being relitigated. If this right is stripped away entirely, the future looks even more grim, opening the door to unchecked, indefinite detention without judicial oversight.”

Though she’s been able to get Mahdawi and others like him out of detention, she can’t help but look at these case through the lens of her own family’s history, and her father’s difficult choice to leave home and come to the United States so his family could live without the fear of arbitrary detention.

“And here we are. At least we have a mechanism for now to challenge those. We’re not going anywhere,” Droubi says of civil rights lawyers. “We’re going to keep fighting these battles.”

Harvis says the constitutional promise has never enforced itself, that it’s always taken people willing to protest and litigate, even in unfriendly forums. 

For the average citizen, Laufer says it’s important to realize your rights don’t self-exercise; you have to exercise them.

“If you fail to do that,” he says, “then you risk waiving them.”