Without Remedy, Is It a Right?

While explaining the gap between what the U.S. Constitution promises and the reality of what a civil rights lawyer can accomplish in a courtroom, Austin civil rights attorney Laura Goettsche recalls something a professor said in law school. People often called him after an arrest to say the police did such-and-such, and they wanted to know: Can they do that?

And the answer was always yes. They can because they did.

“It’s important to have a good understanding of what your rights are, but it doesn’t mean they can’t be violated,” Goettsche says. “It just means you’re supposed to be able to do something about it when they are. People are always shocked by that. The Constitution is only as strong as the institutions that are willing to enforce it, and I feel that courts have narrowed enforcement to a point that alarms me. A right without a remedy isn’t a right.”

The remedy for violations of Constitutional rights—like your First Amendment right to free speech, your Fourth Amendment protection from unreasonable search and seizure, and your Fifth and Fourteenth Amendment rights to due process—is a lawsuit, a 1983 claim, for example, that can result in damages ranging from $1 to millions of dollars.

Goettsche’s firm, Hendler Flores Law, handles such cases on behalf of protesters, as well as those who’ve experienced excessive police force resulting in death or serious injury. Among their clients are members of Austin’s deaf community who have been subject to police violence after failing to respond to verbal orders.

But even for the most egregious violations, Goettsche says, it’s a challenge for plaintiffs to get their day in court.

Houston civil rights attorney Jack Urquhart says the vast majority of civil rights violations—short of being killed or seriously injured—are never heard by a jury. He answers intake calls personally and often finds himself explaining the limitations of the legal system.

“There are fewer and fewer lawyers willing to take on civil rights litigation because it has become increasingly difficult to overcome judicially created barriers,” says Urquhart, who shifted his practice to civil rights after 40 years of product liability cases because he saw such a need. “Illegal traffic stops fall into this category, when a person is arrested despite a lack of probable cause or reasonable suspicion and perhaps subject to excessive force.”

Urquhart believes we’re living in a time of governmental overreach. “There is a dismissiveness to what happens to regular people when they get pulled over for no good reason,” he says. “Even if they’re in jail just for a night, they have to hire a lawyer to defend them or struggle to defend themselves. I don’t sense there’s a lot of public appreciation for that.” And if they attempt to sue for recompense? “So many cases end up dying at the dismissal stage because there’s virtually unlimited discretion for the court to say, ‘Well, not enough facts.’”

Qualifying Rights

If a case isn’t dismissed, Urquhart and Goettsche say the next hurdle is a judicial rule called qualified immunity. It protects government officials from being sued unless they violate a clearly established right. The attorneys say the courts have interpreted this to mean there has to be a past case with nearly identical facts that resulted in accountability.

“Qualified immunity was originally designed to protect officers who act in good faith in genuinely unclear situations,” says Goettsche. “What it’s become is something else entirely. It’s become a near automatic dismissal mechanism, and it shields officers even when the unconstitutionality of their conduct is not in serious doubt. It creates a paradox for plaintiffs because the first person to suffer a novel violation has no precedent to point to, and therefore no remedy.”

Despite such obstacles, Goettsche says anyone who thinks their rights have been violated should still call a lawyer. She says plaintiff’s firms like hers often take cases on contingency and conduct a preliminary investigation to request and analyze records like bodycam footage and coroner’s reports.

“That is such a catharsis for people—to have answers,” she says.

Austin Kaplan, an employment and civil rights lawyer at Kaplan Law Firm in Austin, notes that the strongest cases can start with the most hesitant clients, who call at the urging of friends or family.

“If you think your rights were violated, take up the phone or get on the internet and reach out to a couple of lawyers and check on it,” he says. “Maybe you’re right, maybe you’re wrong, but go ahead and ask the question. … It’s better to check.”

Despite what he calls “the vibe change” under the Trump administration, Kaplan says your civil rights, including protection from discrimination in the workplace under the Civil Rights Act, have not changed. 

“Although they’ve made efforts through executive orders, those powers are, by design, limited,” Kaplan says. “If the executive changes, all of it goes away immediately. So I’m hopeful that a lot of the damage is going to end up being temporary.”

In the employment arena, Kaplan sees sexual harassment “on the rebound,” and employers emboldened to allow rights violations. But there has been a push by the Trump administration for one type of discrimination case. “They’ve made it clear that their priorities are discrimination against males and Caucasians, and American workers by companies allegedly favoring foreign workers,” Kaplan says. “But the way the law works is that it expands access to courts for minority and underrepresented groups as well. … If they take a broader read of what qualifies as an adverse employment action—which they have, recently—then that means that everybody who might have suffered that adverse action at work has access to courts now.”

The Most Precariously Perched

As bad as all of this is, it’s worse for noncitizens.

Kaplan is one of many attorneys who have volunteered to represent wrongfully detained immigrants in habeas petitions seeking their release.

“That’s been a big effort nationally to try to fight back against the detentions, especially for folks who had work authorization,” Kaplan says. “They followed the rules. They got detained anyway. And now we as taxpayers are paying all this money to keep them detained when previously they were paying taxes and working jobs. Noncitizens are the most precariously perched in terms of their rights. They need defense.”

Goettsche feels the same about defending protester’s rights—even when there is no identical past case on her side. “The thing about judicial doctrines is they can always change,” she says. “There can always be a new set of cases that develop case law in a new direction. Just because something is the current state of the law doesn’t mean that that’s the state of the law forever.”

But she is seeing a chilling effect on people’s willingness to protest. She feels it herself; and she admires clients brave enough to exercise their First Amendment rights. She urges anyone concerned about the state of civil rights to make sure they vote and get involved in their legislative process.

Urquhart agrees. “Congress can do a great deal,” he says. “A judicially created doctrine like qualified immunity can be thrown away or tailored by congressional action. … At the end of the day, it’s your local elections, your sheriff, mayor, city council. It’s who you send to Congress. And when, for example, they sit on the Judiciary Committee, are they concerned about citizens in their district whose rights really have been violated?”

The threat to civil rights, Urquhart adds, is rooted in the view that the courts are too busy to handle too many violations. “If you can’t deal with civil rights cases, then we really need to look into what our judiciary is doing,” Urquhart says. “Because a constitutional violation of the smallest right needs to be remedied or we’re not protecting our constitutional rights. Period.”