What good are rights under RI Constitution if you can't enforce them? That might change.
The Rhode Island Constitution is a lot like a Zen koan: Do you have a right if you can't enforce it?
The Rhode Island Constitution's entire first article is a declaration of "certain constitutional rights and principles." Rhode Islanders should have a bevy of rights, per the state constitution:
A "right to justice" (Section 5).
The right against unreasonable search and seizure (Section 6).
Rights of "fishery and the privileges of the shore" (Sections 16, 17).
The right to free speech, assembly and redress of grievances (Section 21).
The rights of crime victims to be treated with "dignity, respect and sensitivity" (Section 23).
But like the Zen koan that asks if a tree makes a sound if no one hears it fall, do constitutional rights exist if you can't sue when your rights have been violated?
That's the problem addressed in two pieces of legislation, introduced in the Rhode Island House and Senate, that would give anyone who's had their state constitutional rights violated the right to sue the government.
As it stands, the courts in Rhode Island have found that no one can sue any governmental entity or actor for the violation of their state constitutional rights.
"You have no rights at all, because no private right of action exists," lawyer Dick Sinapi with Sinapi Law Associates said in an interview. Sinapi drafted the legislation introduced in both chambers (H 7636 and S 2675).
Why can't you sue over violations of the Rhode Island Constitution?
Rhode Island courts have found that the rights in the state's constitution are not "self-executing." That is, no one can sue over those rights unless there is some additional law that lets someone sue. Without the General Assembly passing a law, no one can sue over those rights violations.
The reason?
The Rhode Island Supreme Court does not want to create a new way for people to sue, instead leaving it up to the legislature, U.S. District Judge William E. Smith wrote in a recent decision.
What would the Rhode Island Civil Rights Enforcement Act do?
The two bills introduced in both chambers would allow people to sue state and local governments over civil rights violations.
Dubbed the Rhode Island Civil Rights Enforcement Act, the three-page bill would:
Allow people to sue government entities for state constitutional rights violations.
Allow for injunctive relief and compensatory damages.
Allow for an award of attorney's fees.
It would not:
Set a cap on damages.
Allow for punitive damages.
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A brief history of civil rights enforcement and qualified immunity
Civil rights lawsuits date back to at least 1871, when Congress passed the Ku Klux Klan Act. The pertinent section, which allows people to sue state and local officials who violate civil rights guarantees, is now known as Section 1983, leading to 1983 claims.
Specifically, the law was intended to enforce the provisions of the 14th Amendment including the equal protection clause, during the Reconstruction era.
Qualified immunity: Take a dark and deep dive into Reuter's investigation into qualified immunity
In 1967, the U.S. Supreme Court invented a new policy it called qualified immunity. It has honed and refined this new doctrine, from a "modest exception for public officials who acted in 'good faith' and believed that their conduct was authorized by law" into a shield for public officials accused of misconduct, according to a history published by The Appeal.
In 1982, the Supreme Court greatly expanded the doctrine, shielding public officials even if they acted maliciously, unless a victim's rights were "clearly established." That has been expanded to mean how similar the facts in a given case are.
Qualified immunity, which came to national prominence after the killing of George Floyd, often prevents victims from pursuing lawsuits over civil rights violations (up to and including being killed) and lets government actors off the hook, even when they act maliciously.
As Reuters reported in its four-part investigative series "Shielded: How an obscure legal doctrine called qualified immunity protects police accused of excessive force," the differences deemed significant enough between a "clearly established" case and one that is dismissed for being too different are often farcical:
"In other recent cases, courts have sided with police because of the difference between subduing a woman for walking away from an officer, and subduing a woman for refusing to end a phone call; between shooting at a dog and instead hitting a child, and shooting at a truck and hitting a passenger; and between unleashing a police dog to bite a motionless suspect in a bushy ravine, and unleashing a police dog to bite a compliant suspect in a canal in the woods," according to the investigation.
State constitutions are the new buzz
Institute for Justice attorney Ben Field litigates civil rights cases across the country and champions the use of state constitutions to pursue civil rights claims. The use of state constitutions is beginning to catch on, he said.
In Michigan and Nevada, their respective high courts have recently interpreted their constitutions to allow for civil rights lawsuits, with the Nevada Supreme Court cutting to the heart of the issue in its 2022 opinion, finding the opposite of the Rhode Island Supreme Court:
"We simply recognize the long-standing legal principle, that a right does not, as a practical matter, exist without a remedy for its enforcement," the justices wrote in a 2022 opinion, in the case of a woman who was strip-searched when she tried to visit her boyfriend in prison. (The case settled for $126,000.)
In California, the Bane Act allows people to sue when their civil rights have been violated, and in 2022, New Mexico passed a civil rights act that permits lawsuits for constitutional violations. In Colorado, a civil rights law allows for lawsuits, but only against police officers.
"It varies across the states and has been a relatively recent innovation, looking to state constitutions," Field said.
The cases Field is litigating include a mayor and his chief of staff allegedly having police weaponize tickets against a political challenger, and a civil forfeiture case where a man had his life savings seized by state troopers.
The movement to seek redress for civil rights violations is coming from both the left and the right, Field said.
"We have 50 states for a reason, so we have 50 different constitutions. There's no reason everyone follows the one federal system in lock step, rather than developing 50 constitutional bodies of law," Field said.
State constitutional rights are usually interpreted more broadly than in their federal counterpart
State constitutions have been litigated in one realm: criminal law, usually around criminal rights. Most of the time, judges find state constitutional protections broader than their federal counterparts, Field said.
In Rhode Island, the right against unreasonable search and seizure is greater than those granted under the Fourth Amendment. "Sobriety checkpoints" violate the state guarantees against unreasonable search and seizure under a 1989 case, Pimental v. Department of Transportation.
Outside of the criminal context, there has been "no development at all" of state constitutional rights, Sinapi said.
New Mexicans gained the right to sue in 2021. What's happened since?
What would happen if Rhode Island let people sue for state constitutional violations? It helps to look at places that have enacted similar legislation.
In April 2021, New Mexico Gov. Michelle Lujan Grisham signed the New Mexico Civil Rights Act, which gives residents the right to sue for constitutional violations.
New Mexico took up the cause in response to the killing of George Floyd, although the state has been grappling with police killings for a long time. (The police force for the largest city, Albuquerque, has been under a federal consent decree since 2015 for its systemic violations of civil rights.)
The New Mexico Civil Rights Commission report, recommending the bill as a solution, summed up the issue of constitutional rights not being enforceable as they are in federal courts this way:
"That leads to the bizarre circumstance where, for example, someone who slips and falls on government property can recover for their injuries, but a person who is denied any number of their fundamental rights under the state Constitution – including state rights to free speech, freedom of religion, freedom of elections, and the right to bear arms – cannot."
The New Mexico law eliminated qualified immunity as a defense for state lawsuits and initially capped damages at $2 million, allowing the cap to increase with the rate of inflation, and, just as importantly, allowed for the collection of attorney's fees. However, it does not allow for punitive damages.
Field said the right to sue is meaningless if the plaintiff cannot get attorney's fees if they win the case, as attorneys can drag out the proceedings, bleeding a plaintiff dry. It also incentivizes public agencies to consider settling, as the prospect of paying attorney fees for many years of litigation case can eclipse a big jury award.
Since the law passed, few if any cases have been brought to trial or given a chance for judges to determine how to interpret New Mexico's 24-point bill of rights.
The biggest benefit so far has been speeding up litigation, multiple attorneys interviewed for this story said.
Richard Rosenstock, a New Mexico civil rights lawyer, said in past cases, delays related to qualified immunity appeals have been especially problematic with older clients who may not live to see their day in court.
When asked what kind of cases would be brought that otherwise can't be, Sinapi said wrongful prosecution cases are top of mind.
A Black teenager spent three years in jail before being acquitted. Then he sued.
New Mexico civil rights lawyer Shannon Kennedy knows how to bring a civil rights violation case, as she was most recently involved in a $44-million federal jury award in a teacher sex abuse case. Federal lawsuits brought under Section 1983 have no cap on damages and allow for punitive damages.
For Kennedy, the New Mexico Civil Rights Act means the prospect of swifter justice, and swifter settlements, including the case of a Black teenager allegedly framed for murder by police in Hobbs, a small city near the Texas border that has already been wracked by settled claims of racial targeting.
"Previously, I would have been bogged down in qualified immunity, and it would have taken seven years," Kennedy said. "Instead, they settled within a year for a little more than a million dollars. That case, to me, saving one life, makes the law worth it."
On Aug. 25, 2019, in Hobbs, a city of 39,648 people, a group of gunmen ambushed a house party, killing three people.
The police department set its sights on 19-year-old Bishop Henderson III, who is part of the 6% of the population that identifies as Black in the majority white/Hispanic town. Officers charged him with multiple counts of murder for the three deaths.
After three years spent in jail and a 20-day trial, jurors spent two hours deliberating on Aug. 22, 2022, before finding Henderson not guilty for the three deaths and injuries of four others.
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Three months later, Kennedy filed a lawsuit against the City of Hobbs for the conduct of its police officers, under the New Mexico Civil Rights Act, alleging they had intentionally framed Henderson for the killings.
Around that time, the City of Hobbs settled a federal lawsuit filed by Kennedy for $1.2 million over former police officers who claimed they were "subjected to racist language" and "forced to target minority neighborhoods" and required to fulfill traffic ticket quotas by targeting Black drivers.
Kennedy filed Henderson's lawsuit under the new New Mexico Civil Rights Act, alleging violations of his state constitutional right against unreasonable seizure, an analogous right to the Fourth Amendment that state courts have interpreted as being stronger than its federal counterpart.
If Kennedy had sued under the federal civil rights law, known as a 1983 claim, there would be a potentially limitless award for damages, including punitive damages, as the civil rights law has no caps. If she filed under the new New Mexico Civil Rights Act, any award would have been capped at a little over $2 million.
With the settlement money, Henderson was able to get out of Hobbs, and away from the gang members who had been threatening him.
"I feel like that case saved his life," she said.
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Reach reporter Wheeler Cowperthwaite at wcowperthwaite@providencejournal.com or follow him on Twitter @WheelerReporter.
This article originally appeared on The Providence Journal: RI bills would allow lawsuits for civil rights violations
